WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND DECISION #348. Stephen Carpenter, Solicitor representing the Workers Compensation Board

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1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: [PERSONAL NFORMATION] CASE ID #[PERSONAL INFORMATION] APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #348 Appellant Sean Curley, Worker Advisor Respondent Stephen Carpenter, Solicitor representing the Workers Compensation Board Place and Date of Hearing October 2, 2018 Rodd Charlottetown 75 Kent St Charlottetown, Prince Edward Island Date of Decision October 24, 2018

2 WCAT Decision #348 Page 2 of 6 Appeal Proceedings 1. The appeal was conducted on October 2, 2018 before the Workers Compensation Appeals Tribunal ( Tribunal ). 2. The Worker brings this appeal from the decision of the Internal Reconsideration Officer ( IRO ) IR #[PERSONAL INFORMATION] dated December 10, 2015 which denied the Appellant s appeal to keep the claim open. Facts 3. The accepted facts on this file have been detailed within the Appellant s Factum and have been reviewed by the Tribunal. They are summarized below. 4. The Appellant was employed as a forklift operator with [PERSONAL INFORMATION] when on June 13, 2014 when a door came off the track, landed on his head, and caused him to become unconscious for a period of time. The Appellant filed a Form 6 Workers Report on June 18, [Appeal Record Tab 6] 5. On the date of the accident the Appellant attended the Emergency Department at Queen Elizabeth Hospital and was diagnosed with a concussion and left shoulder sprain. [Appeal Record Tab 3] 6. The Appellant returned to work on June 23, 2014 but continued to experience migraine headaches and fainted a few times at work. [Appeal Record Tab 7] 7. On June 23, 2014 the Appellant s claim was accepted for temporary wage loss benefits and for medical aid benefits, with a diagnosis of first degree concussion and neck sprain. Temporary wage loss benefits were for the period June 16-23, 2014 only. [Appeal Record Tab 8]

3 WCAT Decision #348 Page 3 of 6 8. On June 30, 2014 Dr. Hameed confirmed that the Appellant was unable to work and that a CT scan of the brain was required. [Appeal Record Tab 10] 9. On July 14, 2014 the Appellant s temporary wage loss benefits claim was reopened as of June 30, 2014 [Appeal Record Tab 12] 10. The Appellant continued to be unable to work throughout 2014 and into 2015 [Appeal Record Tab 18] 11. On April 19, 2015 the Board medical advisor, Dr. O Brien opined that the Appellant should see Dr. Silverberg, neurologist, due to persistent post concussion symptoms the Appellant was experiencing. [Appeal Record Tab 20] 12. The Appellant was referred to Dr. Ferguson in lieu of Dr. Silverberg due to difficulty in getting an appointment with the latter. On July 7, 2015 Dr. Ferguson provided a diagnosis of oculovestibular concussion as well as left should soft tissue injury and suggested a multi-pronged treatment plan. [Appeal Records Tab 21, 22] 13. On July 21, 2015 Board medical advisor Dr. O Brien noted that the Appellant was more than one year post accident and that the neuro-optometry referral for post-traumatic vision syndrome suggested as part of Dr. Ferguson s treatment plan was not a treatment generally accepted as evidence based, and that further investigations or treatment, other than a trial on melatonin to address sleep disorder, would not be helpful. Dr. O Brien relied on a 2004 Discussion paper prepared for The Workforce Safety and Insurance Appeal Tribunal of Ontario for his recommendation. [Appeal Record Tab 23] 14. On July 24, 2015 the Appellant was advised that his ongoing symptoms were more likely related to non-work related factors than his workplace injury and were not supported by medical findings. As a result, the Appellant s claim was closed effective July 27, 2015 [Appeal Record Tab 24]

4 WCAT Decision #348 Page 4 of A request for internal reconsideration was filed by the Appellant on October 28, 2015 [Appeal Record Tab 26] 16. On December 10, 2015 the Internal Reconsideration Officer denied the Appellant s request. [Appeal Record Tab 1] Issue 17. The issue before the Tribunal is whether or not the decision to close the Appellant s claim effective July 27, 2015 was appropriate. Appellant s Argument 18. The Appellant s arguments were canvassed in the Appellant s Factum and oral presentation. The Tribunal considered everything presented. 19. The Appellant recognizes that there is conflicting medical evidence on file in terms of whether further treatment would be beneficial for his compensable injury. The Appellant submits that Board Policy 68 Weighing of Evidence is applicable and that Dr. Ferguson s opinion should be given greater weight than that of Dr. O Brien. The Appellant notes that Dr. Ferguson examined and treated the Appellant while Dr. O Brien s opinion is based solely on a single discussion paper. In addition, Dr. Ferguson s practice specializes in the area of concussions. [Appellant Factum Tab 2] 20. Alternatively, the Appellant submits that the medical evidence is at least equal and therefore the Appellant should be giving the benefit of the doubt as required by section 17 of the Workers Compensation Act. [Appellant Factum Tab 3] Respondent s Argument 21. The Respondent s arguments were canvassed in the Respondent s Factum and oral presentation. The Tribunal considered everything presented.

5 WCAT Decision #348 Page 5 of The Respondent notes that the Appellant s claim was open for more than one year even though the Official Disability Guidelines indicate the normal healing time to be between 3-7 days. [Appeal Record Tab 23] 23. The Respondent relies on Board Policy 68 Weighing of Evidence as well but submits that Dr. O Brien s evidence should be given greater weight in this case. The Respondent notes that Dr. O Brien agreed with four out of the five recommendations that Dr. Ferguson made but had to look at the recommendation for further treatment in terms of whether or not there was evidence to support that the treatment would be beneficial. Dr. O Brien relied on medical research to come to the conclusion that there was no medical evidence that supported the position that Dr. Ferguson s referral would improve the Appellant s symptoms. [Appeal Record Tab 23] 24. The Respondent points out that it is the Board s mandate and responsibility to make assessments as to whether potential treatment provides a real possibility of assisting the Worker in their return to work. If it will not in all likelihood relieve the Worker s symptoms they cannot simply authorize such treatment. 25. The Respondent s position is that the research in this case confirms that the recommended treatment has not been proven to consistently provide relieve from the post concussion symptoms and therefore the Board correctly weighed the evidence and closed the Appellant s claim. Decision 26. For reasons which are set out in this decision, the worker's appeal is denied. 27. In analysing Board Policy 68 Weighing of Evidence, the Tribunal finds that Dr. O Brien s evidence and opinion were based on objective medical evidence. Although Dr. Ferguson did indeed examine the Appellant, the question the Board had to decide on was whether or not the recommended treatment had a reasonable likelihood of success. With that question in

6 WCAT Decision #348 Page 6 of 6 mind, the fact Dr. Ferguson examined the Appellant becomes of less importance and the objective medical evidence relied upon by Dr. O Brien becomes of greater weight. 28. The Tribunal also takes note that the Appellant s recovery has gone long past the timeframes set out in the Official Disability Guidelines. 29. In this case Dr. Ferguson and Dr. O Brien agreed on more areas than they disagreed. The Board was correct in giving more weight in this matter to Dr. O Brien s evidence based on the objective medical literature and therefore for the Appeal is denied. 30. The Tribunal would like to thank the parties for their submissions. Dated this 24th day of October, 2018 Gordon MacFarlane, Vice Chairperson Workers Compensation Appeal Tribunal Concurred: Marion Miller, Employer Representative Shelly Higgins, Worker Representative