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 May 24, 2022 in relation to a head injury. A hearing was held on January 23, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after May 24, 2022 in relation to a head injury.

Decision

The worker is entitled to benefits after May 24, 2022 in relation to a head injury.

Background

The worker filed a Worker Incident Report with the WCB on February 24, 2022, reporting that they slipped and fell while crossing the street on their way to see a resident on February 23, 2022. They reported falling and striking the right side of their face, right outer thigh and right hand on the road. The worker continued to work and sought medical treatment after their shift finished.

The worker attended a local emergency department on February 23, 2022, advising the treating physician they slipped on ice that morning, falling on the right side of their head but did not lose consciousness. The worker complained of a right temporal headache, right facial bone pain and right-sided body pain and it was noted the worker was nauseous and had thrown up once while in the waiting room. Dizziness and blurred vision along with cervical neck pain with movement was also noted. A brain and facial bone CT scan taken that date noted “Soft tissue swelling about the right orbit. No intracranial hemorrhage or facial bone fracture identified.” X-rays of the worker’s cervical spine, right wrist, pelvis and bilateral hips and right femur did not identify any fractures. A thumb spica splint was applied to the worker’s right wrist and it was recommended that the worker remain off work for 2 days to rest.

In speaking with the WCB on February 28, 2022 regarding their claim, the worker confirmed they slipped on the road, falling on the right side of their face, right elbow, lower arm and hand. They advised they did not lose consciousness but felt dizzy when they got up. The worker further advised that they got up and continued with their job duties. They went to the bathroom and saw swelling and bruising around their right eye and felt pain in their right outer thigh, right elbow, arm and hand. The worker noted they contacted their manager to report their injury and had a family member drive them to the local emergency department for medical treatment. The worker described their symptoms as aching pain, swelling and bruises on the right side of their face and around their right eye, blurred vision with redness and a little watery discharge, intermittent right-sided headache and throbbing pain to their right outer thigh, right elbow, arm and hand. The worker advised the WCB that, in addition to seeking medical treatment at the emergency department, they were also seen at a different hospital with respect to their eye on February 24, 2022, by their family physician on February 25, 2022, who completed a modified duties form, and by a second eye doctor on February 28, 2022. The Doctor First Report from the February 25, 2022 appointment with the worker’s family physician was received by the WCB. The family physician recommended that the worker attend for an x-ray of their right hand in 10 days to rule out a scaphoid fracture. The x-ray conducted on March 3, 2022 indicated “No fracture or dislocation…” for both the worker’s scaphoid and right hand. The x-ray also indicated degenerative changes in the worker’s lumbar and cervical spine. At a follow-up appointment with their family physician on March 3, 2022, the worker was diagnosed with a lumbar and cervical sprain after the physician examined the worker and found decreased range of motion in those areas. It was recommended that the worker remain off work until March 13, 2022. A report from the worker’s treating eye physician for an appointment on February 28, 2022 was received by the WCB on March 11, 2022. The physician diagnosed the worker with a peri-orbital contusion, noting no ocular trauma was evident, and recommended ongoing treatment with the worker’s family physician. At a further follow-up appointment with the treating family physician, the worker was placed off work until April 11, 2022.

On March 15, 2022, the WCB contacted the worker for a status update. The worker advised the WCB that their treating family physician had placed them off work until April 11, 2022, with the WCB noting the physician had not indicated why the worker should be off work. The worker further advised that the physician had not recommended further treatment and indicated their back and neck symptoms were getting worse. The worker indicated they would be seeking physiotherapy or chiropractic treatment to help with recovery. The worker also indicated that their right eye was sore, and they were continuing to see the eye physician. The worker stated that their leg and hand were fine but again noted worsening back and neck symptoms.

The worker submitted a Worker's Claim for Hearing Loss to the WCB on March 22, 2022, reporting that since the February 23, 2022 workplace accident, they have experienced sudden hearing loss involving their right ear, including ringing. On March 23, 2022, the worker attended an initial physiotherapy assessment reporting pain to the neck and back, ringing in their ear and occasional headaches, tingling down their right arm and leg occasionally and an impaired ability to sleep and perform functional tasks. On examining the worker, the treating physiotherapist found the worker's cervical flexion and extension was decreased, lumbar range of motion was decreased, the worker had an antalgic gait and increased pain with lumbar and cervical compression. The worker was diagnosed with a whiplash injury, strain of cervical and lumbar muscles, with some radicular symptoms. The treating physiotherapist noted the worker had been placed off work by their physician until April 11, 2022.

The WCB contacted the worker on March 27, 2022 to discuss their claim. The worker advised the WCB that their right eye was still painful and swollen and they were experiencing a "sandy sensation" and was seeing black dots. The WCB noted that the worker, when speaking to another WCB adjudicator, reported back and neck pain that had not been previously reported. The worker advised they had lower back and neck pain after the workplace accident, that worsened 2 weeks later and that they were more concerned with the injuries to their face and eye at the time of the accident. The worker noted their right thigh had improved but they were still experiencing pain and swelling to their right elbow, arm and hand. In addition, the worker reported constant daily headaches, which radiate to their neck but resolve after a few hours. When questioned by the WCB regarding the Hearing Loss Report, the worker advised they noted a "hissing" sound in their right ear a few weeks after the accident, describing it like a "drumming or beating" sound, with white discharge from their right ear. The WCB advised the worker the new symptoms would need to be reviewed by a WCB medical advisor. Due to issues with their treatment, the worker was seen by a new family physician on March 30, 2022 who, after examining the worker, diagnosed an eye contusion and recommended heat and non-steroidal anti-inflammatories as needed.

At the request of the WCB, the worker attended a call-in examination on April 19, 2022 with a WCB medical advisor. After examining the worker, the advisor opined the worker's diagnosis with respect to the February 23, 2022 workplace accident was a minor head injury and strain-type injuries to the neck and back. The WCB medical advisor noted that the worker did not report losing consciousness immediately following the accident, with no reported neurological deficit or altered mental state. In addition, it was noted the worker had not reported any hearing difficulties in the weeks following the workplace accident, until a hearing loss report and an audiology report dated March 21, 2022 were placed to the worker's file. The worker reported they experienced a hissing sound in their right ear, which started 5 to 7 days after the accident. The advisor indicated that the natural history for resolution of a minor head injury and neck and back strains was approximately 3 to 4 weeks. Given the amount of time since the workplace accident, the advisor concluded there would be no workplace restrictions required for the worker to return to work. The worker attended a follow-up appointment with their treating family physician on May 12, 2022, and was referred to an Ear, Nose and Throat (ENT) specialist and recommended to remain off work until May 31, 2022. On May 17, 2022, the worker had an initial physiotherapy assessment, reporting pain with any neck and back movements. The treating physiotherapist noted “Significant pain and symptoms in both the cervical and lumbar spine” and diagnosed a lumbar and cervical spine strain and queried a disc irritation/protrusion. Total disability for 4 weeks was also noted.

On May 17, 2022, the WCB advised the worker that they were not entitled to further benefits in relation to their head, neck and back injuries after May 24, 2022 as it had been determined their ongoing difficulties were not related to the February 23, 2022 workplace accident.

The worker was seen by the ENT specialist on May 18, 2022. The worker reported experiencing tinnitus and bilateral hearing loss with the specialist opining the worker had moderate to moderate-severe sensorineural hearing loss bilaterally. A further audiogram in 1 month and a brain CT scan were recommended. In addition, the specialist recommended the worker be assessed by their treating family physician for post-concussive symptoms with a possible referral to a head injury clinic. The worker requested reconsideration of the WCB’s decision that they were not entitled to further benefits in relation to their head, neck and back injuries to the Review Office on June 17, 2022. The worker noted in their submission, they continued to experience difficulties with sleep and other symptoms and believed they were entitled to further benefits.

The worker advised the WCB on June 24, 2022 that they were returning to work on modified duties on June 28, 2022. On July 5, 2022, the WCB accepted the worker’s claim for hearing loss related to the February 23, 2022 workplace accident and as a result, also accepted the worker’s time loss from May 25, 2022 to June 27, 2022 due to the hearing loss portion of the worker’s claim only.

The Review Office determined on September 6, 2022, the worker was not entitled to benefits after May 24, 2022 in relation to the head/jaw, neck and back difficulties. The Review Office accepted and agreed with the opinion of the WCB medical advisor that the worker’s compensable injuries, as a result of the February 23, 2022 workplace accident (namely a minor head injury and neck and back strains), would have resolved within 3 to 4 weeks. In addition, the Review Office noted the opinion of the WCB physiotherapy consultant on May 31, 2022, that the new diagnoses provided by the worker’s treating physiotherapist were not medically accounted for in relation to the workplace accident. As such, the Review Office agreed with the WCB’s decision the worker was not entitled to further benefits after May 24, 2022.

On August 10, 2023, the worker’s representative submitted new medical information and requested reconsideration of the Review Office’s previous decision. The representative advised the reports from the worker’s treating neurosurgeon, along with the medical reporting on file from the worker’s various treating healthcare providers, all supported the fact that the worker continued to suffer from post-concussion symptoms and, as such, required further benefits after May 24, 2022. The Review Office found, on October 25, 2023, that the worker was not entitled to benefits after May 24, 2022, in relation to a head injury. The Review Office determined, based on the reported mechanism of injury and the medical evidence in closest proximity to the February 23, 2022 workplace accident, that the worker sustained a right eye contusion, a minor head injury, right upper and lower extremity contusions/strains, all of which were found to have resolved within 3 to 4 weeks. It was noted by the Review Office the worker’s hearing loss was accepted as being compensable.

The worker’s representative filed an appeal with the Appeal Commission on June 24, 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 that Act and the policies established by the WCB's Board of Directors.

Section 4(1) of the Act entitles a worker to compensation when it is established that they sustained personal injury because of an accident at work. Section 4(2) provides that a worker injured in an accident is entitled to wage loss benefits for their loss of earning capacity resulting from the accident, but wage loss benefits are not payable where the injury does not result in a loss of earning capacity during any period after the day of the accident.

When, because of an accident, the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid, 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.

Worker’s Position

The worker appeared in the hearing represented by a Worker Advisor, who provided an oral submission to the panel and relied on their past written submission dated August 10, 2023. The worker provided testimony through answers to questions posed by members of the appeal panel.

The worker’s position is that as a result of the compensable workplace accident of February 23, 2022 they suffered injuries including a concussion, and they continued to experience symptoms of headache and dizziness related to the concussion after May 24, 2022. The worker submitted that the diagnosis of concussion arose out of the compensable accident and therefore the WCB should accept responsibility for that diagnosis as resulting from the accident of February 23, 2022.

The worker’s position is that the symptoms of headache and dizziness arose out of and are the direct result of the compensable workplace accident of February 23, 2022 and states that they continued to experience these symptoms after May 24, 2022.

The worker submits that three of the worker’s treating physicians provided the opinion that the worker’s headaches are post-concussive in nature. The worker states that the mechanism of injury caused the headaches and the headaches continued to be a problem for the worker well beyond May 24, 2022.

It is the opinion of the worker that the WCB medical consultant relied on the typical recovery time of minor head injuries and did not take into account the severity of the worker’s symptoms.

The worker’s position is that they sustained a concussion from the workplace accident and are entitled to benefits after May 24, 2022 in relation to their head injury and their appeal should be granted.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The question before the panel is whether the worker is entitled to wage loss benefits after May 24, 2022 in relation to a head injury. For the worker’s appeal to succeed, the panel would have to find that the worker continued to sustain a loss of earning capacity or to require medical treatment after May 24, 2022 in relation to a head injury arising from the injury sustained in the compensable workplace accident of February 23, 2022. As detailed in the reasons that follow, the panel was able to make such a finding and therefore, the appeal is granted.

The evidence before the panel is that the worker did not experience headaches prior to the accident.

The panel finds that the details of the worker’s symptoms upon attending the emergency room following the accident, particularly the evidence that the worker was nauseous and had vomited while in the waiting room, to be indicative of a head injury. The worker had face and neck pain, swelling, dizziness and blurred vision. The emergency room visit summary noted that the worker had “no personal history of headaches or migraines.” The panel also put emphasis on the fact that the plan recommended by the emergency room physician for the worker was brain rest. Furthermore, the panel is of the view that the mechanism of injury the worker sustained on February 23, 2022 was capable of having caused a head injury.

The WCB recognized and noted that the worker was experiencing headaches, however, it did not investigate that symptom further. The panel is of the view that the WCB erred in the investigation as it relates to that specific symptom. The WCB medical advisor stated in their call-in examination notes dated April 19, 2022 there were no findings in the imaging investigations and from their examination that indicate the presence of serious pathology. The opinion of the WCB medical advisor was that it was not probable that a brain injury occurred. The panel does not agree.

The medical evidence on the file supports the finding that the worker was suffering from headaches from their first hospital visit, through their physiotherapy appointments, and at their call-in examination with the WCB. There are multiple instances throughout the medical file where the worker reported headaches or head pain. The worker was also seen by the concussion clinic in August 2022 as noted in the March 30, 2023 chart note. There is no evidence before the panel that the worker’s headaches subsided prior to May 24, 2022.

The panel accepts that the worker did indeed suffer a head injury, and is satisfied, on a standard of a balance of probabilities, that the worker continued to experience symptoms as a consequence of the compensable workplace injury sustained on February 23, 2022. The worker is therefore entitled to benefits after May 24, 2022.

The worker’s appeal is granted.

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 21st day of March, 2025