Appeals Resolution Officer Decision
Decision Number: 20250036
Objecting Party: Worker Represented by: Worker Representative
Respondent Party: Employer Represented by: Employer Representative
Hearing: Hearing in Writing
Heard by: Neil Clark, Appeals Resolution Officer Dated: February 28, 2025
Issue
The worker, through their representative, objects to the Case Manager’s June 7, 2019 decision, which determined that the worker’s concussion, and post-concussion-related symptoms, reached maximum medical recovery with no permanent impairment.
Background
The Appeals Resolution Officer’s March 3, 2022 decision provides a comprehensive background of the worker’s claim. Therefore, I will not repeat it in full. In summary, on October 7, 2016, the worker tripped on an extension cord in a school gym. The worker fell forward, hit their forehead on the leg of a table, and then their knees, right arm, right shoulder, and face struck the floor. The claim was initially allowed for a concussion and contusions to the face, right shoulder, and bilateral knees, as well as loss of earnings benefits.
On September 7, 2018, a Return-to-Work Specialist met with the worker and the employer to develop a graduated return-to-work plan. The plan was based on return-to-work recommendations provided by a rehabilitation facility in June 2018. The worker attempted the plan but stopped working as of September 20, 2018.
In their decision dated June 7, 2019, the Case Manager determined that the worker’s concussion had resolved, as they could not identify any residual pathology related to the injury. At that time, the worker did not meet the time limit to object to this decision, and a time limit extension was denied on May 14, 2021.
On April 28, 2021, an Appeals Resolution Officer determined that the worker had entitlement to benefits for neck, upper back, and lower back strains; however, they found that while the worker’s upper back and lower back strains fully recovered, the worker’s neck strain reached maximum medical recovery with a permanent impairment as of June 28, 2018. The worker subsequently received a 6% Non-Economic Loss (NEL) benefit for their neck impairment.
In their decision dated March 3, 2022, an Appeals Resolution Officer found the following:
- Entitlement to post-concussive headaches or sensory sensitivity with associated nausea and vomiting is not in order.
- Entitlement for right shoulder adhesive capsulitis is not in order.
- Entitlement for left knee patella-femoral syndrome, patellar mal-tracking, chondromalacia patella, and quadriceps tendinosis is not in order.
- Entitlement to a psychotraumatic disability is in order, but the worker reached maximum medical recovery without a permanent impairment by June 28, 2018.
- Entitlement for chronic pain disability is not in order.
- The worker is entitled to partial loss of earnings benefits, not full loss of earnings benefits, from September 10, 2018 to October 20, 2018.
In regard to the worker’s post-concussive issues, the Appeals Resolution Officer identified that they would make no findings regarding this, as the worker had not met their timelines to object to the decision that denied ongoing entitlement to benefits for a concussion.
In their decision dated May 6, 2024, the Workplace Safety and Insurance Appeals Tribunal determined that the worker’s time limits should be extended concerning the June 7, 2019 decision, which found that the worker’s concussion injury resolved. The decision concerning the worker’s concussion was then reconsidered by the Operating level on June 21, 2024 and September 9, 2024, and upheld.
The worker, through their representative, objects to the determination that their concussion, and post-concussion-related symptoms, reached maximum medical recovery with no permanent impairment. This issue forms the basis of the appeal before me.
Authority
Operational Policy Manual Published: 11-01-05, Determining Permanent Impairment November 3, 2014
Analysis
I have carefully considered all of the available information, legislation, and relevant operational policies in reaching this decision. I find that the worker’s concussion, and post-concussion-related symptoms, did not recover and reached maximum medical recovery with a permanent impairment as of February 16, 2021.
Worker’s Position
The worker, through their representative, states that they should have ongoing entitlement to benefits for a traumatic brain injury, as well as post-concussion syndrome. They identify that at the time of their discharge from the rehabilitation facility in June 2018, the reporting confirms that they were continuing to experience severe headaches, cognitive impairment, and issues with memory and concentration. Following this, they state that the worker was seen by another neurologist in March 2019, at which time the ongoing symptoms were attributed to the work-related accident. Additionally, the worker notes that in February 2021, another doctor also diagnosed their issues as being related to their injury.
Given the above, the worker states that their concussion did not resolve, is permanent in nature, and that they should be entitled to a NEL benefit assessment.
Employer’s Position
The employer, through their representative, states that the decision to deny ongoing entitlement to benefits for a concussion, and the related symptoms, should be upheld. They provide a comprehensive submission, which includes a detailed background of the worker’s claim.
The employer states that the reporting from the rehabilitation facility did not identify any residual pathology from a concussion and that there were no neurocognitive barriers that would restrict the worker from returning to work. They note that throughout the worker’s treatment, they experienced significant improvement. At the time of the worker’s discharge, they were reported to have ongoing headaches, but had no psychological restrictions. The employer identifies that although the worker was assessed at the rehabilitation facility, by Dr. Gladstone, on June 7, 2018, the headaches that were discussed were never directly attributed to the workplace injury.
In addition to the above, the employer notes that within the available clinic records, headaches and migraines were mentioned twice in 2014 and three times in 2015. They state that the notations in 2015 also followed a motor vehicle accident that appeared to have occurred that year. Accordingly, it is the employer’s submission that the worker’s headaches are chronic and pre-existing in nature. They also submit that while another doctor commented on the worker’s post-concussion syndrome in 2019, they did not have a full understanding of the worker’s medical history. In addition, while in 2021, a third doctor provided a diagnosis of post-concussion syndrome, they also did not review the worker’s prior medical history and, at this time, the worker was also being treated for possible multiple sclerosis, which was considered a differential diagnosis.
In summary, the employer states that there is no evidence that the worker’s ongoing symptoms relate to their workplace accident in 2016.
Assessment of Entitlement
Operational Policy 11-01-05, Determining Permanent Impairment, defines a maximum medical recovery as when 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. It states, in part, that a recovery from a work-related injury is considered to have been made if there is no evidence of an ongoing work-related impairment at the time maximum medical recovery is reached. To determine when maximum medical recovery 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.
When considering if the worker’s concussion, and related symptoms, had resolved at the time of the June 7, 2019 decision, I reviewed the available medical evidence, including the clinical records from that period. On June 7, 2018, the worker underwent an assessment at the rehabilitation facility with Dr. Gladstone, a neurologist. Dr. Gladstone noted that the worker continued to report constant headaches and photophobia, for which there had been no improvement. The doctor also stated that the worker was nauseous five to six times per month. They reviewed the worker’s current medication usage and provided a number of recommendations concerning headache management. They also suggested that the worker continue to participate in treatment at the rehabilitation facility.
Later in the month, on June 28, 2018, the worker was discharged from the treatment program at the rehabilitation facility. The Occupational Therapist confirmed that the worker continued to report headaches, which impacted their functional tolerances. In addition, symptoms such as fatigue and cognitive concerns remained present.
On March 8, 2019, the worker was seen by Dr. Maria, who is also a neurologist. This appointment occurred as diagnostic testing had revealed possible concerns regarding Multiple Sclerosis. Dr. Maria confirmed that the worker was “having difficulty with regards to her post-concussive symptoms,” and noted related issues concerning dizziness, concentration, poor sleep, and anxiety. In their assessment of the worker, the doctor wrote that “Based on history and physical examination, [the worker] is not manifesting with any symptoms suggestive of Multiple Sclerosis. I think all of her symptoms are related to her previous concussion and this is all in keeping with post-concussion syndrome.”
Dr. Gofeld, a specialist in pain medicine, assessed the worker on February 16, 2021. They completed a comprehensive review of the worker’s ongoing concerns and stated that their general impression of the worker’s problems was a “history of traumatic brain injury with chronic daily headaches, secondary to fibromyalgia and post-concussion syndrome.” However, the doctor did note that a possible differential diagnosis was the worker’s Multiple Sclerosis lesions.
Beyond this period, the worker’s family doctor’s records indicated intermittent complaints concerning ongoing issues with headaches. There is also a July 19, 2021 assessment with another neurologist, Dr. Vosoughi, for the purposes of monitoring possible Multiple Sclerosis lesions. At that time, ongoing migraines and daily headaches were mentioned, but the doctor did not discuss the work-related injury. The appointment concluded with a discussion concerning additional medication recommendations.
In considering the above, I accept that, in its totality, the evidence demonstrates that the worker’s concussion and post-concussion symptoms did not recover, as per Operational Policy 11-01-05, Determining Permanent Impairment. I note that at the time of the worker’s discharge from the rehabilitation facility, symptoms such as ongoing headaches, photophobia, and cognitive concerns remained present. Immediately prior to this, Dr. Gladstone assessed the worker and numerous treatment recommendations were provided.
The worker was then assessed by a second neurologist, Dr. Maria, less than one year later who directly attributed the worker’s symptoms to their previous concussion and post-concussion syndrome. I find it relevant that the issues which Dr. Gladstone had recommended various medications for also remained present and consistent at the time Dr. Maria assessed the worker. Beyond this, the worker’s ongoing head injury concerns continued to be identified within the medical information, and in 2021, Dr. Gofeld’s impression was that the worker’s symptoms related to a brain injury.
I place significant weight on the reporting of both neurologists who treated the worker and did not relate their symptoms to any other issues or pre-existing conditions. In doing so, I recognize their specialty in neurology and their direct assessment of the worker. It should also be noted that there are no other medical opinions on file that contradict that of Dr. Maria, who clearly related the worker’s symptoms to the workplace accident.
I recognize the employer’s position that Dr. Gladstone did specifically mention that the worker’s headaches were a result of their accident; however, I must have regard for the fact that Dr. Gladstone was treating the worker following a direct referral to the rehabilitation facility by the Workplace Safety and Insurance Board. Therefore, I accept that the assumption would be that treatment would be for the workplace injury, as per the other comprehensive reporting from the rehabilitation facility, and that if other causes of the worker’s headaches were present, those would have been identified within their reporting.
I also acknowledge the employer’s concerns that Dr. Gofeld did confirm that a possible differential diagnosis was Multiple Sclerosis; however, when reviewing this, I note Dr. Maria, who is a neurologist, confirmed that the worker’s symptomology was related to their head injury and not Multiple Sclerosis. Beyond this, there is no medical evidence to support that this opinion has changed or evolved.
I have given careful consideration to the employer’s view that the worker’s symptoms were pre-existing and chronic in nature. In my review of the medical evidence, I have also identified that the worker did report pre-existing headaches in 2014 and 2015, and that a motor vehicle accident appeared to have occurred during this period. In weighing this evidence, I am persuaded that the worker’s present symptoms relate to their workplace accident, as even though the worker did experience prior headaches, this did not result in the same level of medical care, medication, or treatment. In addition, the worker had returned to work at the time of the accident and there is no evidence to support that any prior headaches were impacting the worker’s level of function or occurring as frequently and intensely as they were following the accident. It is also relevant that following the workplace injury, the medical information identifies other symptoms outside of headaches, such as cognitive concerns or photophobia, which do not appear to have been present prior to the accident at work.
As I have established that the worker’s concussion, and related post-concussion syndrome, did not resolve, it is necessary to determine if a plateau in recovery has been reached, as per Operational Policy 11-01-05, Determining Permanent Impairment. In my review of the file, I note that when Dr. Gofeld assessed the worker on February 16, 2021, the same symptomology that was identified in 2018 and 2019 remained present. Following the appointment with Dr. Gofeld, the primary treatment recommended was a ketamine trial; however, I accept that this therapy would likely be aimed at controlling the worker’s condition rather than resolving it. Given the passage of time, the worker’s largely unchanged symptoms, and the continuous reporting concerning the presence of a concussion and the related symptoms, I find that the evidence demonstrates that the worker reached a plateau in their recovery as of February 16, 2021, as Operational Policy 11-01-05, Determining Permanent Impairment. Therefore, the worker is entitled to a NEL benefit assessment.
Any further entitlement or benefits flowing from my decision that the worker has a permanent impairment for their compensable concussion, and their related post-concussion syndrome, is remitted to the Operating level. The worker retains the right to appeal any subsequent decisions made by the Operating level.
Conclusion
I find that the worker’s concussion, and post-concussion-related symptoms, did not recover and reached maximum medical recovery with a permanent impairment as of February 16, 2021.
The worker’s objection is allowed.
DATED FEBRUARY 28, 2025
N. Clark Appeals Resolution Officer Appeals Services Division