20230085

REPRESENTED by:

HEARD by:

DATED:

JUNE 19, 2023

The worker, through their representative, is objecting to the case manager’s decision of June 18, 2015 that determined the following:

The concussion fully resolved by July 10, 2015 with no permanent impairment.
Entitlement to ongoing benefits was denied.

A prior Workplace Safety and Insurance Appeals Tribunal (Tribunal) provides a concise history that has no bearing on the issues under appeal. As such, I will only provide a brief history in order to place the issues for this appeal into context.

On February 27, 2015, this classroom teacher went to the school library during planning time, sat in a chair and the bottom dropped out. This caused the worker to hit their head against a shelf. On March 5, 2015, the worker resumed their regular duties. Initial entitlement was accepted for health care and loss of earnings (LOE) benefits for a concussion.

On May 4, 2015, the worker began losing time from work due to their head injury and entitlement to a recurrence was accepted. Subsequently, the worker was referred to a regional evaluation centre (REC) due to ongoing symptoms. The employer then offered modified duties. The case manager found the work was not suitable and allowed entitlement to LOE benefits.

In a decision letter of June 18, 2015, the case manager concluded the clinical information supported the concussion fully resolved by July 10, 2015 with no permanent impairment. Entitlement to ongoing benefits was denied. It was anticipated the worker would resume their regular duties. The decision was reconsidered on March 23, 2016 and January 6, 2023, but the original decision was upheld.

The worker objects to the decision dated June 18, 2015 and the issue was referred to the Appeals Services Division for further consideration.

Operational Policy Manual

Published

11-01-05 Determining Permanent Impairment

November 3, 2014

15-02-03 Pre-existing Conditions

November 3, 2014

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)

July 15, 2011

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that follow, I find the work-related concussion fully resolved by November 24, 2016. I find entitlement to partial LOE benefits is in order from September 3, 2015 to June 2016 and should be based on a 0.5-work day. I find entitlement to LOE benefits beyond June 2016 is not in order. The operating area should confirm the worker’s last day worked in June 2016, noting they resigned that month. The worker’s objection is allowed in part.

Worker position

In the submissions of November 1, 2022 and June 2, 2023, the worker representative stated both the general practitioner and neurologist diagnosed the worker with post-concussion syndrome. They argued more weight should be placed on the neurologist’s opinion vs. that of the WSIB medical consultant. They stated maximum medical recovery (MMR) was achieved by June 29, 2016.

The representative argued the worker was entitled to partial LOE benefits based on the actual wage loss from September 2016, an alternative suitable occupation identified by the WSIB, or the provision of a return to work plan to help return the worker to the workforce. In support of their position, they referenced various policies 11-01-05 (Determining Permanent Impairment), 18-03-02 (Payment and Reviewing LOE Benefits (Prior to Final Review)), 19-02-07 (RTW Overview and Key Concepts) and 19-02-08 (RTW Co- operation Obligations).

Employer position

In the submission of April 20, 2023, the employer representative argued the worker had prior issues, which included passing out in a dentist’s chair in September 2011, a concussion with amnesia in November 2011 and diagnostic imaging taken in 2010 and 2012. The worker was diagnosed with a non- work-related condition and received treatment for it. They indicated some clinical information was redacted and opined there could be other issues as well.

The representative outlined various clinical records, including claim file information, from November 2011 to February 2023. They opined that over time, the link between the worker’s symptoms and the workplace accident became less clear. They placed weight on the opinions of the assessment team at the REC and that of the WSIB medical consultant.

The representative argued the clinical evidence in the summer of 2015 shows the worker was active and doing well. The clinical reporting revealed the worker took several trips and worked on many home projects and renovations. They opined the worker’s concussion issues have fully resolved as anticipated and requested the case manager’s decision be upheld.

Policy

In order to determine if a worker has fully recovered from his/her work-related injury, the information needs to show whether an ongoing work-related impairment exists. This is detailed in policy 11-01-05 (Determining Permanent Impairment). The policy states an impairment means a physical or functional abnormality or loss, including disfigurement, which results from an injury and any psychological damage arising from the abnormality or loss.

Recovery from the work-related injury is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached. MMR means that a plateau in recovery has been reached and no further significant improvement is expected. To determine if MMR is reached, decision-makers consider whether recent clinical evidence indicates any change in the work-related injury, the worker is receiving or will receive treatment that is likely to improve the work-related injury, or the worker is receiving treatment or using medication to maintain the current level of recovery. Once MMR has been determined, decision-makers consider whether there is an ongoing impairment based on the clinical evidence.

The decision-maker must confirm that the ongoing impairment is work-related by considering:

whether the current diagnosis is the same as or compatible with the initial work-related injury/disease diagnosis
whether the clinical evidence of impairment is related to the current diagnosis, and
whether a pre-existing condition or other non-work-related factor is causing or contributing to the impairment.

If the work-related injury/disease and a pre-existing condition or non-work-related factor are both contributing to the degree of total impairment to the area, the impairment attributable to the work-related injury/disease is determined. If the ongoing impairment is caused solely by a pre-existing condition and/or non-work-related factor, there is no permanent impairment

Policy 15-02-03 (Pre-existing Conditions) states the presence of a pre-existing condition does not necessarily mean it is a cause of the worker’s impairment or that the impairment is no longer work- related. A pre-existing condition is any condition that existed prior to a work-related injury/disease, and may include injuries, diseases, degenerative conditions, and psychiatric conditions. The existence of the condition must be confirmed by pre-injury or post-injury clinical evidence and may have been evident prior to the occurrence of the work-related injury/disease or it may become evident afterwards.

Policy 18-03-02 (Payment and Reviewing LOE Benefits (Prior to Final Review)) states a worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of,

a) the day on which the worker’s loss of earnings ceases;

b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury;

c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury;

d) the day on which the worker is no longer impaired as a result of the injury.

If the nature or seriousness of the injury completely prevents a worker from returning to any type of work, the worker is entitled to full LOE benefits, providing the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the WSIB. In some cases, the

WSIB may need to determine post injury earnings. If a worker has returned to work or is participating in work reintegration activities, the WSIB calculates the LOE benefit by taking 85% of the difference between the worker’s pre-injury net average earnings (NAE) and post-injury NAE.

Findings

Is a permanent impairment evident for the head injury?

I find it noteworthy the worker sustained two prior non-work-related concussions in 2010 and 2011. The clinical evidence supports the worker also experienced post-concussion symptoms, including headaches, right eye pain and light and noise sensitivity, in the years prior to the February 2015 workplace accident. In the Acquired Brain Injury Program referral of September 9, 2015, the worker noted hitting their head on a car frame in 2010. This was echoed in the December 8, 2021 neurology report as well. The worker did not indicate whether they experienced symptoms due to the 2010 head injury, nor if that injury fully resolved.

In 2011, the worker sustained a second head injury based on their reporting. The Health Professional Report (Form 8) of March 11, 2015 indicates the worker previously hit their head on a doorframe in November 2011. This was also noted in the concussion initial assessment report of March 29, 2015 indicates the worker has a prior history of concussion with amnesia.

In addition, the worker recalled being diagnosed with a concussion and eye nerve strain after a slip and fall with a head strike on a doorframe in the REC report of June 12, 2015. However, they reported full symptom resolution. In the December 16, 2015 neurology report, the worker reported sustaining a concussion from hitting the top of their head while getting out of a car in 2011. They were diagnosed with a concussion, lost consciousness and had some retrograde amnesia.

In reviewing clinical notes from 2011 and 2012, the November 11, 2011 clinical note indicates the worker was involved in a car accident while in a parked car on November 5, 2011. They complained of sternum and left shoulder pain. Furthermore, the worker also said they passed out in a dental chair in September 2011. No further information was given as to what may have been the cause of loss of consciousness in the clinical note.

In the clinical note of December 10, 2011, the family doctor noted the worker previously underwent magnetic resonance imaging (MRI) testing. The worker reported having more demands on their brain and wanted a follow-up study. They could function and go to work, but got tired. The worker opined being concerned about their brain function, but did not indicate why that was the case.

In the November 9, 2012 clinical note, the worker saw their doctor about headaches. They reported a deep headache since the head injury and indicated it was more noticeable since November 2011. The worker said the headache starts on the right side, then forward and their ear aches as well. Their right eye hurt and it was like seeing through a foggy lens, but there was no sight loss. The worker also complained of light sensitivity and pressure. They wore sunglasses, along with earplugs and were diagnosed with headaches from an injury to the head.

I interpreted the above clinical notes in 2011 and 2012 to mean the worker continued to have ongoing symptoms that resulted from the head injuries in 2011. This is further supported by the MRI report of December 11, 2012, which stated the worker had a history of head trauma with a persistent right-sided headache. The findings were compared to a brain computerized tomography scan from February 2010. The MRI findings were normal.

There is no clinical information between the MRI report of December 2012 and the clinical note of March 2, 2015 in the case record. However, I note there is no evidence to support the post-concussion symptoms resolved following that MRI.

Following the workplace accident of February 2015, the worker reported ongoing symptoms resulting from the concussion. This consisted of headaches, nausea, fatigue, light and noise sensitivity, poor concentration and balance issues. The worker was assessed at the REC on May 30, 2015 by a neurosurgeon and work capacity liaison. In the REC report of June 12, 2015, the worker was diagnosed with work-related post-concussion syndrome that was resolving and non-work-related prior concussion history and pre-existing sleep apnea with ongoing continuous positive airway pressure use.

I note the case manager referred the claim to the WSIB medical consultant in March 2016 about ongoing entitlement for the concussion. In their response of March 17, 2016, the medical consultant opined the symptoms were not related to the concussion and likely due to non-neurological etiology.

Respectfully, I disagree with the medical consultant’s opinion. I find the work-related post-concussion symptoms did not resolve by July 10, 2015, as indicated by the REC report. I acknowledge the worker was seen at a sleep disorder clinic on August 26, 2015 and diagnosed with obstructive sleep apnea.

However, I am satisfied the clinical evidence from August 2015 supports the worker still experienced post-concussion symptoms, which included light and noise sensitivity, headaches and fatigue. This is

supported by the clinical notes from the family doctor from September 2015 and a referral to the Acquired Brain Injury Program on September 9, 2015.

I am also persuaded by the fact the worker returned to work on a part-time basis starting on September 3, 2015 and was accommodated at work by the employer. The clinical note of August 17, 2015 indicated the worker was capable of returning to work to modified hours in September 2015. The family doctor recommended the worker work from 8:30 a.m. to the halfway mark of the day.

I note the employer had the worker’s doctor complete medical assessment forms from August 25, 2015 to April 22, 2016 due to the workplace injury. Minimal deficits in cognition were recognized for attention and concentration, learning and memory, decision-making, organization and planning, communication and adaptation. The family doctor also recommended reduced hours, along with working in a quiet setting with low lighting and no strenuous activity or loud noise.

I note the worker saw the neurologist on December 16, 2015, who opined this case was complex. The worker suffered a concussion at work. They developed various symptoms of post-concussion syndrome, such headaches, dizziness, cognitive decline, psychological changes like anxiety and mood swings, changes in vision and fatigue. Of significance, the neurologist recommended the worker be referred to a neurotologist to assess post-concussion dizziness and earache pain, along with a neuropath for left eye pain and redness.

The worker underwent a binocular vision assessment on January 18, 2016. In the optometry clinic report of January 20, 2016, the worker was diagnosed with myopic astigmatism oculus dextrus and oculus sinister with presbyopia, posttraumatic vision syndrome (PTVS) and right hyperphoria. The PTVS included light sensitivity, dizziness, visual overwhelming and reduce vergence flexibility.

Recommendations included having the worker update their glasses for a distance-only prescription and assessment of horizontal vergence skills. I find it interesting the worker noted no dizziness or jumping of their vision for the first time since the workplace accident. The worker was able to bend over and pick something, then stand back while wearing the new vertical prism prescription.

The worker continued to complain of post-concussion symptoms in 2016. They saw the neuro- ophthalmologist on May 10, 2016 for left eye sharp pain and redness, a recent episode that affected their right eye and complaints of dizziness and memory problems. No ocular abnormality was identified to account for pain and the ophthalmologist thought it was related to the worker’s underlying headaches.

The worker’s ocular motility seemed to be within normal limits with no obvious abnormalities seen.

The worker saw the neurologist again in June 2016. In the clinical report of June 29, 2016, the neurologist indicated the worker’s eye pain did not appear to be significant and may be related to their headaches. The worker had no ataxia and their neurological system was otherwise normal. They were diagnosed with post-concussion syndrome with complex problems. No further follow-up was scheduled, as the neurologist anticipated the worker’s headaches would improve.

The worker representative opined MMR was reached on June 29, 2016 based on the neurologist’s report and a non-economic loss assessment was in order. The representative argued the December 8, 2021 clinical report from the neurologist supports the worker continued to experience a cognitive impairment and post-concussion symptoms following the workplace accident. I note VoxNeuro testing was completed at that time as well.

I do not accept the worker representative’s assertion that a permanent impairment is in order. Instead, I found the clinical evidence supports the work-related concussion symptoms were recovering in 2016. I interpreted the June 2016 neurology report to mean the worker’s balance issues were resolving and it was anticipated their headaches would improve. In the subsequent clinical notes from August and October 2016, the worker reported feeling better. They scored 100% on the binocular vision test, went out and cooked dinner more often and felt like themselves. This culminated in the worker being discharged from physiotherapy treatment in November 2016.

I afforded weight to the physiotherapy report of November 24, 2016. I find it compelling the worker was discharged from treatment and the physiotherapist indicated they were 95% recovered in relation to their pre-injury status. The dizziness handicap inventory was at 4% vs. 16% during the initial assessment. The worker had full movement of their neck without a provocation of symptoms. The dual task vs. dual task plus cognitive activity was at 9.4%, which was within normal limits. The dynamic visual acuity testing two- line difference was without symptom provocation and the worker successfully completed treatment.

In the clinical note of November 29, 2016, the worker reported their post-concussion syndrome was better than 97% and back to normal. At that time, the worker was renovating their house and had not taken medication since going on vacation.

The worker representative argued there was no intervening event after the workplace accident to explain the cause behind the worker’s ongoing symptoms beyond July 2015. They contend the clinical information supports ongoing complaints and symptoms related to the workplace injury.

However, as the November 2016 physiotherapy report indicates, the worker was almost recovered in relation to their pre-injury status. I interpreted this to mean the worker returned to their baseline level. I acknowledge there was a gap in symptoms in 2013 and 2014 as there is no clinical information for the period in the case record. However, it is important to note the worker sustained non-work-related concussion injuries in 2010 and 2011. They experienced post-concussion symptoms as a result of those injuries and even underwent an MRI at that time.

Furthermore, I am unable to relate the regression in the worker’s symptoms from January 2017 to their workplace injury. Of note, the worker was treated for a non-work-related condition in 2017 and 2018.

Their representative states this condition, which resolved by January 2021, did not impact the work-

related head injury and post-concussion symptoms. However, in my view, it is unclear if the non-work- related condition, along with those medications and treatment, may have caused a regression in the worker’s post-concussion symptoms.

In the subsequent clinical notes and reports from 2017 to 2021, the worker reported ongoing post- concussion symptoms. This included headaches, limitation of activities, light sensitivity, pain behind their right eye and dizziness if getting up quickly. In my view, these symptoms are similar to those experienced by the worker prior to the February 2015 workplace accident.

Interestingly, in the clinical notes of March 28, 2017, April 25, 2017 and June 14, 2017, the worker reported spatial/balance issues. They hit their head on the window and walked into drawers. They were working part-time for once a week for five-hours on and off. The worker had a brain MRI taken on July 13, 2017. The findings revealed no acute intracranial abnormalities, or evidence of prior hemorrhage.

There was partial opacification of the right mastoid air cells and correlation with any symptoms of mastoiditis was suggested.

Medical literature states that mastoiditis is most commonly caused by a middle ear infection. Of significance, neurological symptoms resulting from chronic mastoiditis and otitis media with effusion include delayed speech development, poor attention span, poor balance and clumsiness. I note a possible correlation with symptoms of mastoiditis was not investigated and it is unclear if this contributed to or caused some of the symptoms the worker was experiencing.

Noting policy 11-01-05 (Determining Permanent Impairment), I find the available evidence supports the work-related concussion fully resolved by November 24, 2016 with no evidence of a permanent impairment. I found the clinical information in the record following the REC report of June 12, 2015 to the November 24, 2016 discharge physiotherapy report to be persuasive in reaching my conclusion. I am not persuaded there is a convincing clinical explanation for how the worker’s regression in symptoms from 2017 are related to their initial concussion injury.

Is ongoing entitlement to LOE benefits in order?

The employer representative contends the workplace accident was not significant and noted the worker resumed their regular duties after a few days. The worker continued to perform their regular duties until May 4, 2015, when they stopped working. They argued this supports the worker showed fair capabilities until the work stoppage.

However, I previously found the work-related concussion did not resolve until November 24, 2016. I do not accept the employer representative’s position the worker was capable of performing their regular duties in 2015 because the clinical evidence indicates otherwise. Furthermore, I find it significant the employer continued to accommodate the worker’s cognitive restrictions between September 2015 and June 2016, as noted by the employer medical assessment forms in the case record.

The worker representative indicated the worker continued to perform accommodated work to June 2016 and used sick credits to top up their workday. In the correspondence of February 25, 2016, the employer provided a detailed absence sheet for the worker from September 3, 2015 to February 19, 2016. Of note, from September 3, 2015 to November 2, 2015, the worker took 0.5-sick day credits. From November 2, 2015 to February 19, 2016, the worker used 0.6-sick day credits. I am unclear what caused the reduction in work hours and increase in sick credit time.

I note the worker continued to perform work at modified hours until June 2016. At that time, the worker resigned from their teaching position and retired.

In the submission of November 1, 2022, the worker representative maintains the employer told the worker they were no longer able to accommodate them from September 2016. They said the worker had not planned to retire, but did so as they were unable to perform the work. The representative contends the worker did not retire from the workforce, but conducted a self-directed return to work plan. They stated the worker found alternative employment at a wage loss, taking various part-time jobs between spring 2017 and mid-December 2019.

I find entitlement to partial LOE benefits from September 3, 2015 to June 2016 is allowed. I previously found the clinical evidence supports they continued to experience post-concussion symptoms related to the workplace injury during this period. I note the family doctor’s recommendation for return to work in the clinical note of August 17, 2015. The doctor recommended the worker return to work from 8:30 a.m. to the halfway mark of the day. As such, I find partial LOE benefits should be based on a 0.5-work day from September 3, 2015 to June 2016.

However, I find there is no available evidence to support the worker representative’s position that the employer was unable to accommodate the worker beyond June 2016. In my view, the employer accommodated the worker for the entire school year from September 2015 to June 2016. Had the worker opted not to retire in June 2016, there is no indication the employer would have not accommodated them.

I do not find the LOE beyond June 2016 is a result of the workplace injury. I am satisfied the LOE beyond that date is related to the worker’s decision to voluntarily resign and retire. There is no evidence to support the worker was unable to continue working. In fact, as indicated by the worker representative, the worker was employed in a variety of jobs from 2017 onward. They worked as a tutor and in hardware and garden centre stores.

Thus, for the reasons outlined above and noting policy 18-03-02 (Payment and Reviewing LOE Benefits (Prior to Final Review)), I find entitlement to partial LOE benefits from September 3, 2015 to June 2016 is allowed and should be based on a 0.5-work day. I find entitlement to LOE benefits beyond June 2016 is denied. The operating area should confirm the worker’s last day worked in June 2016, noting they resigned that month.

CONCLUSION

As outlined in the above decision, I conclude:

The work-related concussion fully resolved by November 24, 2016 with no evidence of a permanent impairment.
Entitlement to partial LOE benefits from September 3, 2015 to June 2016 is allowed and should be based on a 0.5-work day. Entitlement to LOE benefits beyond June 2016 is denied. The operating area should confirm the worker’s last day worked in June 2016, noting they resigned that month.

The worker’s objection is allowed in part.

DATED June 19, 2023

Ms. M. Rodrigues

Appeals Resolution Officer Appeals Services Division

Worker v. Employer, 2023 CanLII 74909

Case Summary