The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 6, 2000, at the request of the claimant. At the January 6, 2000, hearing, the claimant's advocate withdrew the second issue, specifically, whether or not a Medical Review Panel should be convened under subsection 67(4) of the Act. The Appeal Panel therefore considered only one issue. The Appeal Panel discussed the appeal on January 6, 2000.

Issue

Whether or not the claimant is entitled to benefits beyond April 19, 1996.

Decision

That the claimant is not entitled to benefits beyond April 19, 1996.

Background

On November 4, 1992, the claimant was standing at the company's lunchroom table between two stools when he struck the left side of his left knee on the stool. On November 13, 1992, the attending physician reported a diagnosis of trauma and a cyst to the left lateral aspect of the knee near the head of the fibula. In a subsequent report, dated June 4, 1993, the physician noted that a left knee x-ray taken in November 1992 read, "There are tiny marginal osteophytes laterally consistent with early degenerative changes. No fracture is seen."

On May 4, 1993, the claimant underwent a left knee arthrogram. The report indicated that both menisci demonstrated degenerative changes throughout with a large tear affecting the anterior horn of the lateral meniscus.

In early September 1993, an arthroscopic meniscectomy of the left lateral meniscus was performed. The operative report revealed a normal medial meniscus and a slightly frayed anterior cruciate ligament. There was a detached flap tear identified, which had folded back on itself and healed in a small ball. No areas of chondromalacia were noted. There was no chondromalacia of the patellofemoral joint or abnormal tracking identified.

The claimant was assessed by a Workers Compensation Board (WCB) medical advisor on December 20, 1993, and the following comments were recorded:

• based on history and physical examination, the 1992 compensable injury was a tear of the lateral meniscus of the left knee. This led to some cystic degeneration in the area. The secondary disuse of this injury has led to some quadriceps wasting. The claimant was therefore experiencing some minor effects from his compensable injury.
• based on physical examination, it appeared that the claimant did have some evidence of a posterior cruciate ligament injury in his left knee. "I am unable to relate this specifically to his recent compensable injury, although injury of a ligament would be a possibility given an anterolateral force subjected to the tibial area. There is no specific comment on the posterior cruciate ligament in the operative report. I have not seen any documentation of potential injury to this point in time."

The medical advisor concluded that the claimant was restricted from performing his regular work duties and specific restrictions were outlined for six to eight weeks. File documentation showed, however, that the employer was unable to accommodate the claimant with suitable work.

In May 1995, the claimant underwent a second arthroscopic assessment and a partial lateral meniscectomy was carried out. In a report, dated August 1995, the orthopaedic specialist stated that as of July 26, 1995, the claimant had full range of motion in his knee, no instability and no swelling. The claimant considered fit for light work or sedentary duties.

On August 31, 1995, the claimant was advised by the WCB, that he was considered fit to return to work on a graduated basis and was expected to resume full work by September 25, 1995. File information also showed that the employer was able to accommodate the claimant with appropriate duties by September 11, 1995.

On September 13, 1995, the claimant was involved in a non-work related motor vehicle accident and pursued a claim with the Manitoba Public Insurance Corporation (MPIC). By December 28, 1995, the claimant was declared fit to return to work with the accident employer but did not actually return to work until March 1, 1996, because of his entitlement to vacation benefits from his employer. After three weeks, the claimant became ill with the flu and was off work up to April 14, 1996.

On April 15, 1996, the claimant resumed employment. On April 19, 1996, the employer wrote to the claimant indicating that he was unable to meet the minimum acceptable production levels. As a result, the company terminated the work trial pending receipt of additional medical information. File information showed that the claimant's work duties involved sweeping, mopping, cleaning up the lunch and wash rooms.

On April 24, 1996, the claimant was examined by an independent orthopaedic specialist, which was arranged by the employer. In a detailed report, dated April 30, 1996, the specialist commented on x-rays of both knees which were taken on April 24, 1996, as well as the radiologist's interpretation, "Slight squaring of the articulating surfaces consistent with minor degenerative changes is noted bilaterally. No other abnormalities are seen." In view of these findings, the specialist stated, "I would disagree with his assessment and can only conclude there is evidence of radiologic joint space narrowing laterally and the peaked tibial spines are present. Both are an indication that there is likely significant articular wear in the lateral compartment of this man's left knee."

Under Diagnosis & Comment, the specialist stated, "It appears that Mr. [the claimant] sustained a tear to his left knee lateral meniscus. There is also a diagnosis of articular cartilage degenerative wear. It must be unusual to cause a significant menisceal tear with a direct blow to the knee. . Although x-rays indicate some early degenerative wear in the lateral aspect of the left knee, I have no other x-rays to compare it to decide if it is a progressive condition or not. There is no doubt that if there was a menisceal tear present and the meniscus was removed, there will be increasing degenerative wear of the remaining articular cartilage over the ends of the bone. This will cause progressive osteoarthritis. In other words, the underlying bones are poorly shock absorbed and are prone to sprain, strain and irritation. They will become more symptomatic with load, and repetitive activities will make them worse. The dilemma in this case is what is the pathology that was created at the time of the direct blow November 9, 1992. It would be important to review Dr. [orthopedic specialist's] operative reports to see if there was progressive pathology from the first to the second arthroscopic evaluation."

The specialist stated that when the claimant was examined on April 24, 1996, he had some residual pathology in his left knee, however his knee remained stable and had good flexibility. He stated the claimant had a knee at risk and it would limit and interfere with his usual activities but felt he would be able to some light work activity within the previous outlined restrictions. "Without the operative reports and the ability to compare previous x-rays to present x-rays, it is difficult to state whether Mr. [the claimant's'] ongoing perceived physical impairment is totally the result of his injury of November 9, 1992, or a combination of the injury and now symptomatic underlying previously asymptomatic degenerative knee arthritis. His overall prognosis is poor."

In a report, dated June 27, 1996, the attending physician stated that he did not pull the claimant off the job and that it was the employer who did so. When examined, the claimant had residual discomfort with persistent pain involving the lateral aspect of the left knee joint. Objective findings revealed tenderness over the lateral aspect of the left knee to over the left fibular head. Range of motion was good. The physician noted that these were the same areas that the claimant complained of when he had injured himself on November 1992. It was the opinion of the physician that the claimant could perform light duty work with restrictions, i.e. no more than one flight of stairs at a time and no repetitive pivoting or squatting of the left knee.

The above reports were reviewed by a WCB medical advisor at the request of primary adjudication on August 8, 1996. The medical advisor was of the view that any restrictions needed were preventative in nature in order to avoid further injury to his knee and would not be a direct result of the compensable injury.

On August 14, 1996, and September 11, 1996, primary adjudication wrote to the claimant to advise that in its opinion, he had recovered from the effects of his work place injury of 1992 to enable him to resume his pre-accident duties. The claimant was also advised that vocational rehabilitation services on a preventative basis were not warranted at this time. On January 10, 1997, an advocate for the claimant appealed these decisions to Review Office.

On February 14, 1997, Review Office determined that the claimant was not entitled to benefits and services beyond April 19, 1996 and that a Medical Review Panel (MRP) would not be convened. Briefly, Review Office was of the opinion that the worker's ongoing complaints and his claimed inability to perform work to his employer's satisfaction was a result of pre-existing pathology in the worker's knee and not a result of the compensable injury. Review Office based this conclusion on comments expressed by a WCB orthopaedic consultant, assigned to Review Office, dated February 6, 1997.

With respect to the convening of an MRP, Review Office concluded that the requirements of Section 67(1) of the Workers Compensation Act (the Act) had not been met, therefore an MRP would not be convened.

On February 18, 1997, the claimant was assessed by a WCB medical advisor regarding a Permanent Partial Impairment (PPI) rating. The suggested impairment rating, as calculated by the medical advisor, was 0.89% with respect to the left knee. On March 11, 1997, the WCB determined that the claimant did not have a permanent rateable impairment as a result of his November 9, 1992, work related injury. This determination was based on the information on file together with the examination results of February 18, 1997.

In a submission, dated November 10, 1997, a worker advisor referred to the comments expressed by an occupational health physician, dated October 27, 1997. Briefly, the physician concluded that the cyst may have existed prior to the injury and that it was causing no problem until irritated by the injury. It was also felt that the tiny osteophyte found on the x-ray of the left knee on November 13, 1992 should be regarded as a normal finding in a 56-year-old person. The physician stated that it was clear the claimant had not recovered from the effects of the compensable injury and that his current restrictions were attributable to that injury. The worker advisor requested payment of wage loss benefits from April 19, 1996 to July 17, 1997 inclusive. The worker advisor also appealed the March 11, 1997 adjudicative decision that there was no permanent rateable impairment and also requested an MRP.

In a decision, dated January 23, 1998, Review Office stated that it recognized the worker "most likely had a pre-existing condition at the time of the accident in the form of either a tear or a meniscal cyst, which was further enhanced by the accident and this led to surgery. In this respect, Review Office agrees with the commentary put forward by the board's orthopaedic consultant and to a degree to (sic) the comments put forward by the physician employed by the occupational health centre."

Review Office, however, stated that the main issue was the worker's entitlement to wage loss benefits. Review Office noted that the claimant was sent home by the employer on April 19, 1996, because he was not able to meet minimum acceptable production levels in a job that essentially involved cleaning a lunchroom at his own pace. "There is no justification for the worker not being able to carry out the duties required of this position taking into account his injury. Thus, the claimant was not entitled to payment of benefits."

Review Office also determined that there was no longer a medical issue under dispute and therefore an MRP was not warranted. With respect to the PPI rating, Review Office referred to Section 38(2) of the Act. Review Office stated that the payment of an impairment award is only allowed when the impairment has been rated at 1% or greater. As the claimant's impairment rating was calculated at 0.89%, which was below 1%, he was not entitled to an impairment award.

In October 1999, the claimant with the assistance of an advocate appealed Review Office's decisions regarding his entitlement to benefits beyond April 19, 1996, and with respect to the convening of an MRP. On January 6, 2000, an oral hearing was held.

Reasons

As the background notes indicate, the claimant is seeking to recover from the WCB approximately 15 months of wage loss benefits for the period from April 1996 to July 1997.

According to the worker's report of injury, on November 9, 1992, while standing between two stools in the employee lunchroom, the claimant turned and struck his left knee on a stool. Approximately ten months later, he underwent an arthroscopic meniscectomy of the left lateral meniscus. In May of 1995 a second arthroscopy was authorized and eventually carried out. The attending orthopaedic surgeon provided a report to the WCB and advised as follows:

"As of July 26/95 - lots of complaints in terms of knee pain. On physical examination - full ROM [range of motion] knee, stable, no apparent swelling, tender lateral joint. No further treatment planned. I cannot account for persistent complaints certainly on basis of any meniscal pathology. In view of long history of at times obscure pain best to avoid heavy work (stairs - squats etc.). Ok for light work or sedentary."

In light of the medical information, the WCB worked with the employer during the summer of 1995 to arrange a return to work plan for the claimant. A light duty janitorial position was identified. Prior to the claimant's starting this job on September 25, 1995, he had to be cleared by the employer's physician. The physician recommended a return to work, but with the following restrictions: No prolonged walking and standing; no repetitive or prolonged squatting; no ladder climbing or stair climbing; avoid lifting greater than 40 pounds; and the claimant be allowed to rest when necessary.

Inasmuch as the claimant was considered capable of returning to a light duty position with no loss of earnings, the WCB only paid wage loss benefits to September 25th, 1995. Unfortunately, the claimant was involved in a non-work related motor vehicle accident on September 13, 1995, and as a consequence, the claimant was precluded from returning to work. He claimed and received benefits from MPIC for what was described as neck-related injuries. Eventually, the claimant was authorized to return to work effective December 28, 1995. However, his return was delayed until March 4th, 1996, after he was required to take mandatory vacation time.

The employer, on April 19th, 1996, sent the following letter to the claimant:

"On March 1, 1996 you returned to a Trial at Work with specific restrictions from your physician.
During this time you have been interviewed weekly and all difficulties have been noted by your supervisor.
Currently, you have worked for 20 days (not including the time you were recently on Sun Life) but unfortunately you have not been able to meet minimum acceptable production levels.
In order to assess your current physical condition, and your eventual ability to perform full regular duties we will be arranging an appointment for you through our Medical Department. As soon as the date has been established you will be advised.
Therefore, until we receive this medical evaluation the Company is terminating, for the time being, your work trial and you should not return to work until further advised."

The treating physician submitted a progress report, dated April 23rd, 1996, to the WCB declaring that the claimant was totally disabled effective April 20, 1996. In the meantime, the employer's medical department had scheduled the claimant to be examined by an independent orthopaedic surgeon on April 24th, 1996. In his examination report, the surgeon remarked that the claimant's knee remained stable and had good flexibility. He also made the comment that despite the fact the claimant had a knee at risk, he should "be able to do some light work activity within the restrictions previously described. Without the operative reports and the ability to compare previous x-rays to present x-rays, it is difficult to state whether Mr. [the claimant's] ongoing perceived physical impairment is totally the result of his injury of November 9, 1992, or a combination of the injury and now symptomatic underlying previously asymptomatic degenerative knee arthritis."

According to a declaration, signed on June 14th, 1996, by the maintenance foreman, the claimant's modified job involved light cleaning duties in the lunch room and the locker room areas located on the same floor. The foreman further stated that the claimant could sit down whenever he felt it became necessary. As well, a parking spot located close to the work site was also arranged for the claimant so that his walking distance would be minimized.

On September 23rd, 1996, the employer again wrote to the claimant and advised as follows:

"We were able to modify a labourer's position to meet your restrictions but found that you were unable to 'make a positive productive contribution' (as per Rule 17) to the Company's operation.

Unfortunately, in consultation with the union, labourer work of a lighter nature is not available and we are unable to progress your request to return to work."

At the hearing, the claimant candidly admitted he was physically capable of performing the modified work duties that had been made available for him.

Q. From 1996 to July of 1997, yes. What did you do in that year and two months?

A.Nothing. All the time I was complaining for me to return to back to work. That's all what I was doing, you know. But even I write a letter to the company to take me under Rule 17, but they refuse take me back.

Q.So you were in active negotiations through your union - -

A.Yes, with the company.

Q.- - representative and the company to get you back to work?

A.Yes, but they refuse take me back. Even I write a letter to the company in August and they're sending letter in September that another job was refuse to take me back. Anyway, if you look in the letter, they say - - anyway they didn't want to take me back because they didn't have a job for me with restrictions.

Q.Do feel that in that period, April 1996 to July 1997 you could have physically performed the job duties?

A.The job, yes.

Q.The original job duties?

A.Yes.

Q.You feel that you could have done it physically?

A.Yes.

The claimant also advised the Appeal Panel that he had applied for Employment Insurance benefits after his short-term disability payments ceased in October 1996.

Q.So why did it take so long to negotiate a return to work in July of 1997?

A.Well, no use asking me. I complained to the company, but even if the company they send me to Employment Insurance. I went to Employment Insurance, they refused to pay me because I don't have enough weeks.

Q.So you made application, just for clarification, for Employment Insurance?

A.Yes.

Q.Now was that after your benefits ceased - -

A.Yes, was finished.

Q.- - with Sun Life?

A.Yes.

Q.Just hang on there at that point. Why were your benefits terminated with Sun Life?

A.That's all they pay, only six months.

Q.Only six months?

A.Yes.

The claimant was examined by the WCB on February 18, 1997 for the purposes of determining a possible permanent impairment award for his injured left knee. The following clinical findings were recorded on examination:

• On inspection, there is no swelling in the knee joint. There are no lumps, or discolouration around the joint. There are no skin marks, nor is there any increased heat.
• The extensor apparatus is intact.
• The position of the patella is normal.
• There is no patellar tap.
• There is no thickening of the synovial membrane above the patella.
• On palpation, there is slight tenderness on the lateral and medial joint lines, in their middle one-third.
• There is also tenderness over the collateral ligaments, tibial, both laterally and medially.
• There is no tenderness over the tibial tubercle, or the femoral condyles.
• There is no evidence of hyperextension of the knee joint.
• On being asked to flex the knees, the left knee can be flexed to 135 compared to 140 on the right, for a loss of 5 range of motion.
• There is no genu valgum nor genu varum.
• The Anterior Drawer and Posterior Drawer tests are negative.
• The Macintosh test is painful for the claimant, but no click is produced.
• The Loose Pivot Shift test is negative.
• There is no evidence of meniscal damage.
• There is slight tenderness along the lateral edge of the left patella.
• Both patellae are very mobile, and there is slight tenderness on the left, but no swelling.
• Achieving a full squat is somewhat limited, because of stiffness and pain in the knee.

In our view, these minimal findings are consistent with those identified prior to and subsequent to the claimant's failed attempt at a return to work and did not in any way prevent his performing the light duty position with the employer.

The evidence discloses that the claimant, again with the assistance of his union, initiated attempts to return to work with the employer some time in early 1997. The union filed a formal grievance under Rule 17 of the collective agreement in March. The claimant was successful in exercising his seniority rights, which then allowed his gaining access to a position in another division of the employer's operations. The grievance procedure took approximately four months and the claimant was able to return to work in July 1997.

In accordance with section 39(2) of the Workers Compensation Act, the WCB determined that its responsibility to pay for the claimant's loss of earning capacity as a result of his compensable injury had been fulfilled by September 25th, 1995. An adequate light duty position within the claimant's restrictions had been identified and made available to the claimant by the employer. The claimant's termination by the employer was related to his production levels, and not to any medical evidence suggesting that there had been a change in his medical condition.

While we sympathize with the claimant for the length of time that it took to resolve his differences with the employer, we note, however, that there was no change in his medical status or his restrictions throughout the period from April 1996 to July 1997. We take the view that the wage loss suffered by the claimant during this period is a labour/management issue and not the responsibility of the WCB. Perhaps the claimant's trying situation is best described by his closing remarks at the hearing:

"My comment is that the company, they should pay me for the wage loss for 1996 and 1997 because the company didn't want to take me back on the job under Rule 17.
I apply and they refused to take me back. Even the union, they apply in March 1997, but they taking me four months later to work in the diesel shop.
But I apply in 1996, in August 1996, when the union they mentioned to me to write a letter to the company under Rule 17 and I did. And the company, they answered the letter one month later and they say they didn't have a job with restrictions under Rule 17.
That's all what I can say. That's the company's fault for not taking me back."

We find, based on the weight of evidence, that the physical requirements of the claimant's light duty job were, on a balance of probabilities, within his physical restrictions as outlined by the company's physician and the WCB. The evidence does not support the contention that the claimant was physically incapable of performing the duties assigned to him because of the effects of his compensable knee injury. Therefore, we conclude that the worker's claim for wage loss is not the responsibility of the WCB. Accordingly, the claimant is not entitled to benefits and services for the period of April 1996 to July 1997.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil, Presiding Officer - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of January, 2000