DECISION NUMBER: 20220118

OBJECTING PARTY: WORKER

REPRESENTED by: WORKER REPRESENTATIVE

RESPONDENT: EMPLOYER (NOT-PARTICIPATING)

REPRESENTED by: NONE

HEARING: HEARING IN WRITING

HEARD by: S. DI CARLO, APPEALS RESOLUTION OFFICER

DATED: SEPTEMBER 21, 2022

ISSUES

The worker through their representative objects to the following Case Manager’s (CM) decisions dated:

1. June 22, 2021, which denied a permanent impairment for the worker’s concussion injury, and

2. January 26, 2022, which denied entitlement to optic neuropathy in the right eye. In the same decision, the CM accepted entitlement to the diagnoses of left fourth nerve palsy; versional eye movement disorder with hypometric saccades; accommodative insufficiency and functional vision loss in right eye NYD as occupational diagnoses; however, concluded they do not meet the level to support a permanent impairment.

BACKGROUND

On May 8, 2018, this inventory coordinator was carrying an eighty pound motor away and while walking backwards, their heel got caught on a floor mat and the worker fell backwards striking their tailbone and head on the concrete. The claim was allowed for a neck strain, lumbar spine sprain/strain, and a mild traumatic brain injury (MTBI).

The worker attended physiotherapy treatment for the low back injury, was referred to the Neurology Specialty Program, and treated commencing May 2019 for their concussion injuries via a specialized interdisciplinary treatment program.

The worker was assessed at the Neurology Specialty Program on May 2, 2019 and attended the program for further follow up assessments until they were discharged on June 16, 2020. The worker retired in May 2020.

The CM determined the worker reached maximum medical recovery (MMR) for an unresolved lumbar spine sprain/strain injury as of May 31, 2021, with ongoing permanent restrictions and in June 2021 the worker received a 12% Non-Economic Loss (NEL) for the unresolved lumbar spine sprain/strain impairment.

In a decision dated June 22, 2021, the CM concluded the worker was discharged from the Neurology treatment program further to the report of June 16, 2020 and determined the worker achieved MMR as of November 20, 2020, for the concussion with no evidence of a permanent impairment.

The case was referred to the Appeals Services Division (ASD) following the worker representative’s completion of the Appeal Readiness Form (ARF) dated July 19, 2021, which the worker representative objected to the CM’s decision of June 22, 2021, and requested a permanent impairment for neurological problems and vision problems.

Further to memorandum A0135, an Appeal Resolution Officer (ARO) determined the appeal could not proceed as the Operating Area did not make a ruling on entitlement to eye conditions noted in the November 20, 2020 Neurology Specialty Consultation report. The ARO returned the appeal to the Operating Area to have a decision rendered on the outstanding issues.

In a decision dated January 26, 2022, the CM reconsidered the prior June 22, 2021, decision and upheld the worker recovered from their concussion injury; however, accepted the occupational diagnoses of left fourth nerve palsy; versional eye movement disorder with hypometric saccades; accommodative insufficiency and functional vision loss in right eye NYD as occupational diagnoses yet determined that these conditions did not support a permanent impairment. In the same decision, the CM denied entitlement to right optic neuropathy as compensable.

The worker representative completed a subsequent ARF on July 17, 2021 objecting to both the June 22, 2021 and January 22, 2022, decisions which now forms the basis of this appeal.

AUTHORITY

Workplace Safety and Insurance Act, (WSIA) 1997. Section 2

Operational Policy Manual Published

Policy 11-01-05 – Determining Permanent Impairment November 3, 2014

Policy 15-05-01 – Resulting from Work-Related Disability/Impairment April 9, 2021

ANALYSIS

I have carefully considered all of the available information, the worker representative’s submissions, legislation and relevant operational policies in reaching this decision. I find in part for the worker and the following is my rationale.

1. Did the worker achieve MMR for their concussion injury as of November 20, 2020, with no permanent impairment?

I find the worker did reach MMR for their concussion condition on June 16, 2020 further to the Neurology Specialty Program Follow up Assessment Report with evidence of an ongoing impairment. The following is my analysis.

The worker representative submits further to the submission of June 17, 2021, that following the workplace injury of May 8, 2018, the worker continues to have post-concussive symptoms. The worker representative contends that the worker continued to be symptomatic and did not reach full recovery.

The worker representative seeks that the worker be entitled to a NEL referral for the diagnosis of post-concussive symptoms, post-traumatic headaches.

The issue to be determined in this appeal is whether the worker fully recovered from their concussion injury or is there is evidence of an ongoing impairment.

Policy 11-01-05, titled “Determining Permanent Impairment”, stipulates MMR means that a plateau in recovery has been reached and it is not likely that there will be any further significant improvement in the work-related injury/disease. When a worker reaches MMR, the WSIB attempts to determine the degree of the worker’s permanent impairment by considering all relevant health care information in the claim file.

To determine that a permanent impairment exists, decision-makers must confirm that MMR has been reached, evidence of ongoing impairment exists, and the ongoing impairment is a result of the work-related injury/disease.

Section 2(1) of the WSIA, specifies “impairment” means physical or functional abnormality or loss (including disfigurement) which results from the injury and any psychological damage arising from the abnormality or loss.

The documentary file confirms the worker was assessed at the WSIB Neurology Clinic in May 2019 and then treated until the worker was discharged on June 16, 2020.

The June 16, 2020, Neurology Specialty Program – Follow Up Assessment Report outlined the worker was assessed by Dr. Naeem a neurologist and an occupational therapist. From a neurological perspective no further treatment was required and further to the worker’s previous assessment of April 7, 2019, it was recommended that the worker continue with their current medications and add Venlafaxine (Effexor) 37.5 to start with a one (1) tablet in the morning and increase their prescription, in addition a neuro-ophthalmology specialty consultation was recommended to provide a diagnosis and prognosis for treatment recommendations for ongoing difficulty.

Dr. Naeem noted current concerns and symptoms include headaches with pain described as starting at the base of the skull, which travels, up and through the back of the head with dizziness/balance, nausea, noise and light sensitivity, motor control issues, cognitive symptoms. Regarding functional status, the worker reports they avoid driving at night due to light sensitivity.

The worker’s current occupational medications include:

• Venlafaxine 37.5 mg for mood

• Propranolol 60 mg OD for headaches

• Candesartan 4 mg OD, two (2) tablets daily for blood pressure/headaches

• Amitriptyline 10 mg OD 3 hours before sleep, for sleep and headaches

The assessment detailed the worker continues to improve from a concussion perspective; however, given that the worker continues to have residual impairments despite having this injury for two (2) years, “it is expected that he may never achieve full functional or medical recovery.” Dr. Nadeem opined as the worker finished their concussion therapy program and tried multiple headache prophylactic medication no more treatment recommendations could be offered to the worker. The occupational diagnoses identified were post-concussion syndrome, posttraumatic cervical strain, and posttraumatic migraines.

I note barriers to recovery included medical/injury-related factors that included persistent post-concussion syndrome symptoms and co-morbid musculoskeletal symptoms that were slow to resolve. Additionally, the worker was awarded a 12% NEL benefit for their lumbar spine strain/sprain injury, which in my view speaks to the musculoskeletal symptoms.

I accept the findings identified in the neurology report of June 16, 2020, by the Neurologist and Occupational Therapist support the worker’s continues to have concussion symptoms, mainly involving post-concussion syndrome and posttraumatic migraines.

I find that the presence of these ongoing concussive symptoms in the medical reporting in June 2020, approximately two (2) years after the work-related accident, suggest to me that these symptoms are likely permanent. Furthermore, both the treating Neurologist and Occupational Therapist both opine in the June 2020 “it is expected that he may never achieve full functional or medical recovery.” Noting the evidence before me, I find on a balance of probabilities, that the worker’s concussion has resulted in a permanent impairment for the identified diagnoses of post-concussion syndrome and posttraumatic migraines, further to the June 16, 2020, Neurology Specialty Program report.

For the reasons stated above, I find that the worker has entitlement for the recognition of a permanent impairment for post-concussion syndrome and posttraumatic migraines, with a MMR date June 16, 2020, and entitlement to a NEL award for that condition.

2. Does the does have entitlement for their right optic neuropathy and if so do they have entitlement to a permanent impairment for this condition?

I find the worker does not have entitlement for the diagnosis of right optic neuropathy as this diagnosis was identified as a non-occupational likely ischemic or microvascular diagnosis by the treating ophthalmologist further to the Neurology Specialty Program Specialty Consultation Assessment Report of November 20, 2020. The evidence does not support the optic neuropathy arose secondary to the concussion injury. The following is my explanation.

The worker representative submits that Dr. Seif, an ophthalmologist, assessed the worker on November 20, 2020, and Dr. Seif indicates the worker suffers from right optic neuropathy, which may be related to microvascular issues, which were aggravated by the compensable head injury. The representative seeks that the worker be assessed for a NEL assessment for an aggravation of the right optic neuropathy.

The issue to be determined in this appeal is whether the worker has entitlement to right optic neuropathy aggravated by the worker’s concussion injury and whether this condition has subsequently resulted in a permanent condition of the right eye.

I refer to Operational Policy 15-05-01, titled “Resulting from Work-Related Disability/Impairment” which stipulates workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits to compensate for the further aggravation of the work-related impairment or for new injuries.

The mechanism of injury accepted in this case was that the worker was carrying an electric motor with some colleagues, walking backwards when they slipped falling onto the back of their head and hitting their tailbone.

Further to the June 16, 2020, Neurology Specialty Program report it was recommended that the worker be referred for a Neuro-Ophthalmology Specialty Consultation to assess the worker’s right optic neuropathy as the cause of their ongoing visual symptoms.

The worker was assessed on November 20, 2020, by Dr. Seif for a Specialty Consultation Assessment at the Neurology Specialty Program. The worker’s main issue is that they have intermittent blurring vision in the right eye and that sometimes the vision looks like they are looking through a milky veil. No specific triggering mechanisms or actions were identified. Following examination, the worker was diagnosed with occupational diagnoses of:

1. Left fourth nerve palsy

2. Versional eye movement disorder with hypometric saccades

3. Accommodative insufficiency

4. Functional vision loss in the right eye NYD

Additionally, the worker was diagnosed with anisometropia and right optic neuropathy, NYD, likely ischemic or microvascular in nature as relevant non-occupational diagnoses. Regarding the worker’s prognosis, Dr. Seif outlined the worker’s prognosis was good and that this particular deficit in the right eye would not impact the worker’s ability to function in the long term. Regarding the worker’s functional abilities, the worker is able to take care of most of their activities of daily living aside from difficulty with dressing due to their physical back injury the worker requires some assistance. In addition, due to other issues “not related to his eyes, he does not feel comfortable transporting or shopping or managing his finances by himself at this time.”

Dr. Seif opined that the worker does have optic neuropathy in the right eye; however stated, “this is likely due to microvascular reasons, given his blood pressure and obesity.” Additionally, Dr. Seif, opined, “given the nature and location of his head injury it is more likely that his neuropathy is due to microvascular issues, such as hypertension and obesity.” Dr. Seif indicated it is possible that the worker may have had a traumatic optic neuropathy affecting the right optic nerve but that usually occurs with direct blows to the front of the head “specifically on the frontal bone and less likely to occur with occipital head injuries” like the one in this case.

In my view, I am not persuaded by the worker’s representative’s position that the neuropathy was aggravated by the worker’s concussion as the medical evidence does not establish a causal link exists between the optic neuropathy and the work-related concussion injury. I place significant weight on Dr. Seif’s medical opinion as he clinically assessed the worker and is an ophthalmologist who specializes in vision care. As I have not accepted entitlement to optic, neuropathy of the right eye I find no basis to consider MMR for this condition as it remains non-compensable.

In the decision of January 26, 2022, the CM extended entitlement to the right to include the diagnoses of left fourth nerve palsy, versional eye movement disorder with hypometric saccades, accommodative insufficiency, and functional vision loss in the right eye NYD.

I refer to Policy 11-01-05, which outlines when a worker reaches MMR, the WSIB attempts to determine the degree of the worker’s permanent impairment by considering all relevant health care information in the claim file. To determine that a permanent impairment exists, decision-makers must confirm that MMR has been reached, evidence of ongoing impairment exists, and the ongoing impairment is a result of the work-related injury/disease.

In arriving at my finding, I have reviewed all the medical reports on file and conclude the medical documentation supports an absence of objective evidence to confirm an ongoing physical or functional abnormality related to the accepted diagnoses of left fourth nerve palsy, versional eye movement disorder with hypometric saccades, accommodative insufficiency, and functional vision loss in the right eye NYD. I uphold the CM’s decision that the worker achieved MMR as of November 20, 2020 for the right eye injury with no evidence of a permanent impairment.

In summation, the evidence does not establish a physical or functional abnormality or loss resulting from the work-related right eye injury on a balance of probabilities, and the worker does not have a compensable permanent impairment for the right eye injury.

CONCLUSION

Based on the above, I find:

1. The worker has entitlement for recognition of a permanent impairment for post-concussion syndrome and posttraumatic migraines, with a MMR date June 16, 2020, and entitlement to a NEL award for these conditions, and

2. The worker does not have entitlement to a permanent impairment/NEL benefit for the diagnoses of left fourth nerve palsy, versional eye movement disorder with hypometric saccades, accommodative insufficiency, and functional vision loss in the right eye NYD. The worker does not have entitlement to right optic neuropathy.

The worker’s objection is allowed in part.

September 21, 2022

S. Di Carlo

Appeals Resolution Officer Appeals Services Division