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 medical aid benefits after June 13, 2022; and 

2. They are not entitled to wage loss benefits after September 2, 2022.

A videoconference hearing was held on February 13, 2024 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to medical aid benefits after June 13, 2022; and 

2. Whether or not the worker is entitled to wage loss benefits after September 2, 2022.

Decision

1. The worker is entitled to medical aid benefits after June 13, 2022; and 

2. The worker is entitled to wage loss benefits after September 2, 2022.

Background

The WCB accepted the worker’s claim for a concussion sustained when they slipped on ice at work and were knocked unconscious on March 13, 2020. The worker reported that a coworker found them, and they went to a local hospital, where, after x-rays were taken, the treating physician diagnosed concussion. The worker then went by ambulance to a local emergency department for a CT scan, which indicated no acute intracranial abnormality and no acute fracture involving the cervical spine.

In discussion with the WCB on March 20, 2020, the worker indicated they were placed off work by their family physician as they were not allowed to drive. The worker described symptoms of headache, double vision, photophobia, dizziness, and nausea. The March 16, 2020 report from the family physician, received by the WCB on March 30, 2020, noted the worker’s report of soreness to the back of their head and back, constant photophobia and dizziness, poor concentration and memory and irritability. The physician diagnosed post-concussion syndrome. At follow-up on March 27, 2020, the family physician referred the worker to a concussion clinic.

On April 23, 2020, a neurologist at the concussion clinic assessed the worker and noted they “…appeared to be sensitivity (sic) to light and sound, some throbbing occipital headaches, fatigue, as well as some pain in [their] cervical, thoracic and lumbar spine.” The neurologist opined the worker met the clinical criteria for a concussion and persistent post-concussion symptoms, and recommended an MRI study and trial of physiotherapy, though noting that due to the COVID-19 pandemic, physiotherapy was not likely available at the time.

The cervical and thoracic spine MRI of April 28, 2020 indicated no significant disc protrusion, central canal or foraminal stenosis in the thoracic spine, and mild degenerative changes in the cervical spine.

The worker attended an initial physiotherapy assessment on May 15, 2020 reporting dizziness, nausea, blurred vision, balance problems, cognitive issues, sleep difficulties, right arm tremors, general neck pain, stiffness, and lumbar pain with stiffness. The physiotherapist diagnosed concussion, whiplash, and a lumbar strain. Due to increasing and changing symptoms, the worker went for further follow-up with the treating neurologist on June 22, 2020. On examining the worker, the neurologist indicated they were not clear why the worker experienced a deterioration in their postural stability and balance and recommended a comprehensive assessment by a vestibular physiotherapist and referral to a headache neurologist for their persistent headaches.

The vestibular physiotherapist assessed the worker on July 8, 2020 and found some balance issues but no vestibular issues. At further follow-up with the treating neurologist on August 6, 2020, progressive deterioration in the worker’s vision was noted and the worker was referred to an ophthalmologist for further treatment. On August 6, 2020, the ophthalmologist noted deterioration in the worker’s vision and after examining the worker, concluded the deterioration was due to a combination of age-related macular degeneration, farsightedness, and a side effect of the worker’s post-concussion syndrome. The ophthalmologist recommended the treating neurologist manage the worker’s symptoms. In a telephone follow-up on August 13, 2020, the neurologist opined the worker’s concussion was not a probable cause of their visual deterioration as their April 2020 vision test demonstrated the worker had 20/20 vision in both eyes, with normal pupil functioning and normal visual field testing. The neurologist did note agreement with the treating ophthalmologist that there was a psychological component to the symptoms and encouraged the worker to continue to engage in symptom-limiting activities and to avoid any activities with a risk of head injury.

On January 13, 2021, a neuropsychologist assessed the worker, and in their report to the WCB of February 11, 2021, noted the worker’s responses failed validity testing. The treating neuropsychologist further indicated that while they did not obtain a valid assessment of the worker’s status, based on the worker’s “…presentation, reported symptoms, and progressive course of worsening symptoms over time, I would agree with [treating neurologist] that [the worker’s] symptoms would not be consistent with the nature and course of symptoms that would be expected following what appears to have been at most a mild concussion injury.” They went on to recommend the worker be seen at a movement disorder clinic regarding their visual disturbance and gait abnormalities.

A discharge report from the treating physiotherapist dated March 22, 2021 indicated the worker was one year post accident with minimal general improvement in symptoms and requested an extension of four treatments to finalize a home exercise program for the worker. A WCB medical advisor reviewed the worker’s file on March 29, 2021 and noted the reported symptoms were not typical of post-concussion syndrome one year post accident and that a diagnosis to account for the worker’s current symptoms had not been established. The medical advisor noted the worker was referred to a neurologist at a movement disorder clinic and that that assessment would clarify if there was a relationship between the worker’s current symptoms and the workplace accident. The medical advisor also noted the typical natural history of recovery for a sprain/strain type injury was over a period of few days to a few weeks and at one year post accident, it was likely the effects of the sprain/strain injuries resolved. In addition, the medical advisor concluded further vestibular therapy would not benefit the worker.

On September 20, 2021, the worker attended an appointment with a movement disorders clinic neurologist. On examining the worker, the neurologist concluded the worker had a "…combination of post-concussion syndrome (vertigo, headache, irritability and possibly cognitive issues) with some functional overlay (myoclonic jerks, at least)" and recommended a repeat MRI for further investigation.

On October 4, 2021, the WCB received vestibular test results from testing completed on September 15, 2021 noting "The caloric response is slightly reduced on the right implying pathology in the right ear and/or right vestibular nerve."

On November 24, 2021, the worker saw a third neurologist, with a specialty in headache treatment. On examination, the neurologist diagnosed post-traumatic headaches with migraine characteristics, and with vertigo and subjective difficulty with balance that might be secondary to concussion. The neurologist recommended continued low-impact exercise, vestibular physiotherapy, and behavior therapy.

The WCB arranged a call-in examination of the worker on May 3, 2022. Based on their examination, the WCB medical advisor opined the worker's current difficulties were not medically accounted for in relation to the March 13, 2020 workplace accident and that "…at over two years post-injury with no objective evidence of a significant injury-related diagnosis beyond an initial concussion, the degree of reported symptoms and associated impairments of function are no longer accounted for in relation to a concussion or post-concussion syndrome."

On June 13, 2022, the WCB advised the worker they were not entitled to further medical aid benefits and in accordance with the WCB's policies, an additional 12 weeks of wage loss benefits would be provided with their entitlement ending on September 2, 2022 as the WCB determined the worker was recovered from their compensable injury. On June 21, 2022, the treating family physician provided a letter in support of the worker's claim, and on June 28, 2022, the WCB confirmed there would be no change to the earlier decision.

On July 19, 2022, the worker requested Review Office reconsider the WCB's decision, noting the treating healthcare providers supported the worker’s ongoing need for benefits as they continued to suffer the effects from the March 13, 2020 workplace accident. On September 7, 2022, Review Office determined the worker was not entitled to medical aid benefits after June 13, 2022 and wage loss benefits after September 2, 2022.

The worker's representative filed an appeal with the Appeal Commission on August 23, 2023 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 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, represented by a worker advisor. The worker’s representative made an oral submission on behalf of the worker and provided information to the panel in response to their questions. The worker offered testimony through answering questions posed to them by their representative and by members of the appeal panel.

The worker’s position is that the evidence supports a finding that the worker continued to require treatment and to sustain a loss of earning capacity after the WCB terminated those benefits, and that the worker’s requirement for medical treatment and their loss of earning capacity are both the result of the compensable injuries the worker sustained in the workplace accident of March 13, 2020. Therefore, the worker’s appeal should be granted in respect of both their entitlement to medical aid after June 13, 2022 and to wage loss benefits after September 2, 2022.

The worker advisor reviewed the medical reporting noting that the evidence supports the worker’s position and does not indicate that the worker was recovered from the compensable workplace injuries such that they did not require further treatment and could return to work with or without restrictions before the benefit end dates. The worker advisor noted that there are several medical reports indicating a possible psychological overlay or other health conditions that could account for some of the worker’s symptoms, but that does not mean that all the worker’s symptoms do not relate to the compensable workplace injury. The worker advisor noted that this is explicitly addressed by the treating family physician in their June 21, 2022 report. Further, the worker advisor submitted that there is no evidence of any other neurological condition that accounts for the worker’s symptoms since the accident and noted the WCB did not implement the recommendations of its medical advisor in relation to the worker’s neuropsychological testing results.

The worker advisor submitted that the evidence of continuity of the worker’s concussion and post-concussion symptoms supports a finding that the worker did not recover from post-concussion syndrome. While the WCB may have relied upon recovery norms for a mild concussion in deciding that the worker was recovered, all of the medical evidence on file indicates that this worker sustained more than a mild concussion, described in the initial emergency room reporting as a moderate traumatic brain injury, and that their symptoms did not follow a textbook recovery trajectory. Further, as noted by the treating family physician, the worker also experienced a lack of consistent therapy due to the pandemic restrictions and the worker’s pre-existing condition may also have delayed their recovery.

The worker testified to the nature of their job duties and noted that they passed a job-related medical examination in late February 2020, shortly before the workplace accident occurred. The worker described the mechanism of injury and their recollection of what followed. They described their early symptoms of confusion, loss of memory, sensitivity to bright light and loud noises, feeling confusion and tired, with poor balance and tinnitus in their right ear. The worker noted they later experienced tremors as well, but stated their belief that this symptom was related to a medication they were prescribed as it later went away. The worker described ongoing vestibular symptoms for which they received some treatment. The worker noted they saw a psychologist after the WCB discontinued their benefits. The worker testified that with the frequent stops and starts in physiotherapy because of the WCB’s decisions on their entitlement to that treatment, the worker would lose the benefit of any progress made and each time would have to work to regain the lost ground in the therapy.

The worker stated that they cannot go back to their pre-accident profession, which they worked in for some 46 years before the accident, as they no longer have a license to do that work. The worker indicated that they have investigated some other kinds of work but have not pursued those occupations because they remain unsteady on their feet and have ongoing memory issues and speech “filter” loss because of their injury.

In sum, the worker’s position is that their post-concussion syndrome had not resolved by June 13, 2022, and they still required treatment in relation to that condition beyond when the WCB terminated their entitlement to medical aid. Further, the worker’s position is that they remained unable to work because of their compensable injury after September 2, 2022 and continue to sustain a loss of earning capacity to date.

Employer’s Position

The employer was represented in the hearing by its owner and another employee, who made submissions on behalf of the employer.

The employer’s representatives outlined their concerns in respect of the worker’s position in the appeal. They noted some discrepancies between the worker’s description of the events at the time of the injury and their recollection of those events. The representative noted their belief that the worker is incorrect in asserting they were not otherwise covered for prescription costs after the WCB terminated their medical aid benefits. The representative also noted the employer provided evidence to the WCB that the worker could go on a boat ride in early September 2022. The representative pointed out that there are some inconsistencies within the medical reporting.

The employer’s representative confirmed that that the employer had light duties available to the worker from the time of their injury.

Analysis

The worker’s appeal arises from the WCB’s decisions that the worker is not entitled to medical aid benefits after June 13, 2022 and that they are not entitled to wage loss benefits after September 2, 2022. For the worker’s appeal to succeed, the panel would have to determine that the worker required medical aid to cure and provide relief from the injury sustained in the accident of March 13, 2020 after June 13, 2022 and further, that the worker sustained a loss of earning capacity after September 2, 2022 as a result of the injuries sustained in that accident. As detailed in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted.

The panel noted that the WCB expressed concerns through the claim file and in its decision-making as to inconsistencies in the information provided by the worker. We noted the employer also stated its concerns as to the inconsistency of the worker’s information in the claim file and in their testimony. The panel considered the worker’s evidence that they have memory issues since the accident causing their concussion and notes that this is also documented in the medical reporting. In testimony, the worker confirmed they cannot recall all the details of events from the time of and since the accident and that they “can only remember bits and pieces unfortunately.” The panel finds that this is consistent with the nature of the worker’s injury and accepts that this necessarily may have impacted the worker’s ability to recall and restate information during this claim. As such the panel makes no findings in relation to the worker’s reporting and credibility based upon any such inconsistencies.

The panel noted that the WCB accepted the diagnosis of concussion arising from the worker’s March 20, 2020 workplace accident. This claim relates not to that diagnosis but to the duration of the worker's entitlement to benefits arising from that injury. As such, the panel gave particular attention to the medical reporting prior to and after the WCB’s decision to terminate the worker’s benefits.

The panel reviewed the report from the September 20, 2021 assessment by a neurologist specializing in movement disorders and noted the neurologist’s conclusion that the worker “…has a combination of post-concussion syndrome (vertigo, headache, irritability and possible cognitive issues) with some functional overlay (myoclonic jerks, at least). There are some features that could be seen in corticobasal syndrome including asymmetric dypraxia (sic) and cortical sensory loss.” We note that these conclusions align with those of the concussion clinic neurologist who first assessed the worker in November 2021 on referral from the treating ENT specialist. In providing their initial assessment, the concussion neurologist considered the worker’s reports as to the mechanism of injury and symptoms and reviewed the March 2020 brain CT imaging and the August 2020 brain MRI imaging, concluding that the worker’s headaches were “likely post traumatic headaches with migraine characteristics” and that the “vertigo and subjective difficulty with balance could be secondary to concussion. The neurologist also noted that some of the worker’s symptoms including right hand weakness could not be explained given the prior diagnostic testing results. The neurologist also noted that the worker was scheduled for cognitive assessment with a psychologist and recommended that the family physician address the worker’s mood disorder. The neurologist began periodic treatment of the worker’s headaches with medication injections, which the worker reported as effective in reducing the frequency and intensity of their headaches after a new medication was used beginning in October 2022. The reporting from the concussion neurologist confirms they continued to treat the worker’s “persistent post-concussion symptoms” into at least June 2023.

The panel also considered the January 28, 2022 report from the neuropsychologist who assessed the worker on referral from the movement disorder neurologist. This report noted “objective evidence of suboptimal engagement in the testing process,” but the psychologist concluded that that the worker’s “…behavioral presentation and subjective and collateral reports were consistent with reports of emotional dysregulation, disorganization, impulsivity, and motor abnormalities (i.e., myoclonic jerking, abnormal gait). The nature, extent, and persistence of [the worker’s] symptoms were inconsistent with the typical sequelae and recovery trajectory of a concussive injury.” The neuropsychologist made general recommendations including referral to a clinical psychologist for “treatment emphasizing distress tolerance, somatic symptoms, and presumed functional symptomology, and cognitive compensatory strategies….” The panel noted that the WCB did not follow up on this recommendation, although the medical advisor appeared to rely upon the findings.

The panel reviewed the WCB call-in examination report of May 3, 2022. We noted that the worker at that time reported their perception of little if any improvement in their symptoms since onset after the accident, with a constant headache noted, neck pain, low back pain, dizziness, trouble with gait and balance, photophobia and double vision, mild tinnitus, poor short term memory, personality change, right upper limb weakness and some right lower limb weakness, and feeling like their head was “full of cotton.” The medical advisor, after examination of the worker, concluded that at more than two years since the injury occurred, the degree of the worker’s reported symptoms was not accounted for in relation to a concussion or post-concussion syndrome, although noting no other diagnosis to account for the worker’s symptoms had been determined “despite multiple investigations and the involvement of multiple specialists.” The medical advisor also noted the suggestions that there may be a psychological component to account for “various reported symptoms and/or exam findings” and concluded that “Overall, these [psychological] diagnoses would likely better account for the current presentation than would a diagnosis of post-concussion syndrome” and suggested the WCB arrange for further review of the neuropsychological testing results by the WCB neuropsychology consultant; however, the panel noted that this did not occur.

In follow up to their examination of the worker, the WCB medical advisor contacted the treating ENT specialist to discuss their August 26, 2021 report, as confirmed by their letter of May 17, 2022. In that letter, the WCB medical advisor confirms that “In summary, it remains a possibility that the results of the vestibular testing reflect effects of the compensable head injury.” This contrasts with the medical advisor’s opinion set out in the call in examination notes of May 3, 2022 that “Overall, considering the entirety of [the worker’s] presentation, it is considered unlikely that the results of the vestibular testing relate to the effects of the compensable injury.” The WCB medical advisor also followed up with the treating family physician regarding the possibility of resuming vestibular physiotherapy. The family physician indicated that such further treatment could be helpful, noting the worker had received benefit from it previously. In the family physician’s chart note of May 11, 2022 outlining this contact, the physician documented that the WCB would “most likely continue to support [vestibular physio] but will most likely stop supporting [the worker’s] income and other treatments.” The panel noted however that the medical advisor did not recommend resumption of vestibular physiotherapy, and in a letter to the family physician dated May 24, 2022, the WCB medical advisor noted that “The trajectory of [the worker’s] recovery from effects of a concussion has been characterized by significant delay and an atypical course with worsening rather than improvement of various symptoms” and that it was not their impression that the worker was malingering.

The panel also noted that the WCB medical advisor’s examination notes of May 3, 2022 briefly referenced the treating concussion neurologist’s reports, but despite drawing different conclusions from the neurologist as to the worker’s diagnosis at that time and its relationship to the compensable head injury, the medical advisor did not initiate any discussions with the neurologist following the assessment.

The panel also considered the correspondence from the treating family physician to the WCB dated June 21, 2022. We noted the physician’s comments as follows:

…in my opinion – and this is supported by many specialists who have seen [the worker] and more recently supported by…a concussion specialist – [the worker] is experiencing symptoms consistent with post concussion syndrome after [they] sustained a head injury at work.

I agree that [the worker] has not progressed in a typical fashion but I would argue that due to being diagnosed during the peak of COVID-19 restrictions, [they] also did not have the usual/typical treatment options which contributed to this “unusual recovery trajectory”. [The worker] had significant delays in access to usual treatments and supports such as physiotherapy and specialists – often being assessed only on the phone due to distancing protocols. The significant delays to treatments I believe contributed to [their] slow and not so typical recovery. Additionally, [the worker] also had the unfortunate complication of having a worsening of [their non-compensable pre-existing health condition] during this time of treatment which also slowed down progression.

I believe that [their] additional movement issues (balance and arm twitching) may have distracted some of [their] assessments. In all assessments, the concussion symptoms were consistent and many specialists concluded [the worker] did indeed have post-concussion syndrome but could not explain the extra movements.”

The evidence before the panel outlining the worker’s status in the spring and summer of 2022 suggests at least two potential causes for the worker’s symptomatic presentation, including the head injury of March 13, 2020 and resulting concussion and post-concussion syndrome with resultant headaches and potentially, vestibular symptoms, and a psychological condition or disorder. It appears to the panel that the WCB medical advisor viewed the question of causation as an either/or proposition; in other words, either the worker’s symptoms were all due to post-concussion syndrome or else, none were due to that injury but were the result of the worker’s psychological condition. The panel considered however that there could be more than one cause for the constellation of symptoms presented by the worker, and that if that is the case, the worker could continue to present with symptoms related to and arising from their post-concussion syndrome while also presenting with symptoms related to a psychological condition that may or may not be attributable to the compensable injury. We note that this view is consistent with the opinions of the treating family physician who relied upon the opinions of the treating concussion neurologist and the treating movement disorder neurologist.

The panel accepts and relies upon the opinions of the treating neurologists, and where these conflict with the opinion of the WCB medical advisor, we prefer the opinion of the treating specialists. The evidence from the treating neurologists supports a finding that the worker continued to experience and present with symptoms of post-concussion syndrome and that the worker also presented with other symptoms that potentially relate to another cause. We find that although the worker’s recovery from their post-concussion syndrome did not follow the expected trajectory and has taken much longer to resolve than the WCB anticipated, this may be explained in part by timing related to delays in treatment due to the COVID-19 protocols and restrictions and by the worsening of the worker’s non-compensable health condition as suggested by the treating family physician, and possibly, also overlayed by the still untreated psychological condition.

The worker’s representative submitted that the panel could also find that the worker’s psychological condition is a secondary injury to the compensable head injury; however, that question has not been considered and adjudicated at the primary level by the WCB and as such the panel makes no findings as to whether there is any relationship between the compensable injury and the worker’s subsequent psychological symptoms or condition.

The panel finds the evidence indicates the worker was not recovered from their compensable post-concussion syndrome by June 13, 2022. Further we find that the evidence indicates a need for ongoing treatment in relation to the worker’s continuing symptoms arising from the compensable injury. The panel noted the lack of evidence that the treating physicians at any point recommended or even proposed the worker’s possible return to work, with or without restrictions in place. As such, the panel is satisfied that the worker continued to sustain a loss of earning capacity in relation to their compensable workplace injury beyond September 2, 2022.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker is entitled to medical aid after June 13, 2022 and that the worker is entitled to wage loss benefits after September 2, 2022. The worker’s appeal on both questions is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 26th day of March, 2024