The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on July 17, 2000, at the request of a worker advisor, acting on behalf of the claimant. The claimant was appealing decisions that were made by the Review Office of the Workers Compensation Board (WCB) which determined that the claimant was not entitled to receive payment of wage loss benefits for the periods April 15, 1997 to February 18, 2000 and from March 4, 1998 to February 3, 1999.

Following review of the case on July 17, 2000, the Appeal Panel requested that additional information be obtained followed by an oral hearing. On October 30, 2000, an oral hearing took place at the Appeal Commission via teleconference. On October 30, 2000, the Panel met and rendered its final decision on the issue under appeal.

Issue

Whether or not the claimant is entitled to receive payment of wage loss benefits for the periods of April 15, 1997 to February 18, 1998 and from March 4, 1998 to February 3, 1999.

Decision

That the claimant is entitled to receive payment of wage loss benefits for the periods of April 15, 1997 to February 18, 1998 and from March 4, 1998 to February 3, 1999.

Background

On August 14, 1996, the claimant sustained a compensable injury to his right leg between the ankle and the knee during the course of his employment as a tree topper. X-rays taken the same day of the right knee, right tibia/fibula and right ankle showed no fracture or dislocation.

On September 30, 1996, an orthopaedic specialist reported that the claimant may have a derangement of the right knee likely due to a torn meniscus as a result of the accident. On December 16, 1996, the claimant underwent an open medial arthrotomy and a partial medial meniscectomy. The procedures were accepted as a WCB responsibility.

Subsequently, the claimant commenced physiotherapy treatments following surgery. On January 23, 1997, the orthopaedic specialist noted slight right thigh atrophy and felt that the claimant would be fit for his usual work in one month's time. On February 28, 1997, a WCB medical advisor outlined restrictions for the claimant to avoid climbing, kneeling or walking on uneven ground and that he would be ready for work in four week's time. On April 14, 1997, the family physician indicated that the claimant's condition had adequately improved and that he could return to normal duties by April 15, 1997. According to file documentation, the claimant commenced work on April 16, 1997.

On February 16, 1998, the claimant contacted the WCB stating that he was experiencing problems with his knee, which he thought might be related to arthritis, and that he noticed a slight click in his knee when bending. On February 18, 1998, the family physician diagnosed the claimant with a possible intra articular injury (cartilage) of the right knee and referred the claimant to the treating orthopaedic specialist. The file information showed, however, that the claimant was unable to see the specialist as he was engaged in school activities. In a report by the attending physician dated March 18, 1998, the physician indicated that the claimant had crepitus with movement of the right knee and some limitation in flexion. The claimant was considered capable of medium work and was to avoid use of his extremity.

The next report by the attending physician was dated December 21, 1998. The physician wrote that the claimant was seen in the office on December 1, 1998, and that he had discontinued working in Saskatchewan. The physician stated that the claimant asked him to inform the WCB that the claimant's right knee was still bothering him. Movements of the knee appeared to be normal and there was no history of further injury.

On February 4, 1999, the claimant was assessed at the WCB offices for a permanent partial impairment award. The medical advisor assessed a 9.2% rating for the right knee based on 55 degrees in loss of range of motion and a rating of 4% for knee instability. The claimant was also referred to a physiotherapist for foot orthotics. Implementation of the impairment award was delayed pending an upcoming assessment by an orthopedic specialist. The claimant's wage loss benefits were reinstated effective the date of this examination.

In a report dated May 14, 1999, the orthopaedic specialist commented that the claimant's main problem was that he had not done an adequate job of rehabilitating his leg. It was impossible to do physical work with the status of his quadriceps in both legs. The specialist indicated that the claimant had complaints of much more instability than he would have expected based on the mild amount of ligamentous laxity in the anterior cruciate ligament and in the medial collateral ligament. Given the status of his muscles, the specialist felt it was unlikely that the claimant would ever do anything more than very light work. An arthroscopy was suggested.

Information was solicited by the WCB from the family physician with regard to the dates that the claimant was seen dating back to September 1998 with regard to any knee problems. On April 26, 1999, the physician reported that the claimant was examined on September 10, 1998, for a back injury while at work in Saskatchewan. The claimant was also assessed on February 23, 1999, March 22, 1999 and April 19, 1999 for his right knee complaints.

In a further letter dated June 24, 1999, the physician reported that the claimant was assessed on April 9, 1998 as he was applying for a Class 3 license. The right knee was considered asymptomatic at the time. The next visit was September 10, 1998, when the claimant was examined for his back while working in Saskatchewan. The claimant was seen for his back on September 24, 1998, October 1, 1998 and October 15, 1998. When seen again on December 1, 1998, the claimant complained of difficulties with his right knee. There was no swelling of the joint and no restriction of movements. The claimant experienced pain only when he attempted to use his knee.

On August 4, 1999, Rehabilitation & Compensation Services advised the claimant that there was insufficient medical evidence to substantiate total disability from work effective September 1, 1998. No wage loss benefits would be issued from September 1998 through to January 1999.

The attending physician submitted a further report dated November 18, 1999, which outlined details regarding the claimant's office visits for October 31, 1997, February 18, 1998, March 18, 1998, April 2, 1998, September 24, 1998, and December 1, 1998. On December 10, 1999, Rehabilitation & Compensation Services confirmed that it was unable to substantiate the claimant's effective date of disability and that the claimant was only entitled to two weeks of wage loss benefits.

A report was received from an orthopaedic surgeon dated December 13, 1999. The surgeon was of the opinion that the claimant stretched the anterior cruciate ligaments and possibly had some internal damage to his knee to the femoral condyle. Physiotherapy was suggested to build up the quads muscles and an arthroscope to see what was left of the ACL. Responsibility for the right knee arthroscopy was accepted as a WCB responsibility and the procedure was carried out on January 13, 2000.

On February 11, 2000, the claimant submitted an appeal submission requesting reconsideration of the adjudicator's decision of December 10, 1999. The case was referred to Review Office for consideration.

In a decision dated March 3, 2000, Review Office determined that the claimant was not entitled to retroactive wage loss benefits from April 15, 1997 to February 18, 1998 or from March 4, 1998 to February 3, 1999. Review Office referred to Section 39 of the Workers Compensation Act (the Act) which governs the payment of wage loss benefits. Review Office did not believe that the claimant had the medical support to prove that he had a total loss of earning capacity during the two disputed time periods.

For the period April 15th to February 18, 1998, Review Office noted that the claimant found work from time to time and in September 1998, he injured his back while in Saskatchewan and claimed WCB benefits for a period of some months. As well, no reports of any knee problems were made by the general practitioner when the claimant was seen during this time period. With respect to benefits beyond March 3, 1998, Review Office noted that the claimant was attempting to upgrade his driver's license and according to his own physician he did not believe the claimant's problem was all that severe if he could be attending classes to upgrade his driver's license. The examination findings were minimal and would not constitute a total disability leading to a full loss of earning capacity.

On May 24, 2000, a worker advisor, acting on behalf of the claimant, appealed the Review Office's decision and a report from the family physician was submitted dated May 11, 2000. A non-oral file review was then arranged for July 17, 2000.

Following the July 17th review, the Panel determined that additional information was required before discussing the case further. Specifically, the Panel requested that the following information be obtained:

• Copies of the Claimant's income tax records for the years 1997, 1998 and 1999 from Revenue Canada;
• Copies of any and all claims filed by the claimant with the Saskatchewan and Alberta Workers Compensation Boards;
• An up-to-date report from the claimant's treating physician in Lethbridge, Alberta;
• Referral of the case back to the WCB to obtain a response with respect to a memo on file from a WCB adjudicator date June 28, 2000.

Once the above information was obtained, the Panel requested that an oral hearing be convened.

On October 18, 2000, all interested parties were provided with copies of various documents there were later received by the Panel. On October 30, 2000, a hearing was held at the Appeal Commission via teleconference.

Reasons

The Appeal Panel has unanimously concluded that the claimant is entitled to wage loss benefits for the period of April 15, 1997 to February 18, 1998 and from March 4, 1998 to February 3, 1999. We have concluded this on the basis that the claimant was unable to either find employment or maintain employment during these periods of time as a result of the continuing effects of his compensable knee injury.

The claimant injured his knee while working as a tree topper in the forest industry in Northern Manitoba on August 14, 1996. He had been employed in just such a capacity for approximately twenty years. He left school at age sixteen and completed grade nine education. Working in the forestry industry was the only job activity he had ever been engaged in up to that point. Such work was extremely difficult and physically demanding. It involved utilizing a chain saw weighing between 18 to 28 pounds and working in dense bush conditions on uneven ground and often rocky terrain. This necessarily involved climbing over rocks. The claimant's representative described his job in the following manner:

"Anyone who has ever worked in the forest industry can tell you what it's like to go through the forest industry and work when you're climbing over chicos (ph) and going over muskeg, carrying a power saw. Every single step you take is going to be down unevenly placed on the ground than the other foot was from step to step to step.

Take a look at the type of wood that this claimant would be expected to climb. You could be the average man on a two-man crew, you are talking between 20 to 25 cords of wood per day, talking 400 to 500 trees per day, to have to be limbed and cut and climbed over. Simply impossible for an individual to do, given the nature of this injury with a knee, a knee condition.

And the only way that you can really, truly appreciate what I'm talking about is to go into the woods yourself with a power saw and knock down a couple of trees and try to limb those trees. Then you will have an appreciation of what this individual is up against.

I've had a lot of experience in the woodworking industry, and being the past president of the Woodworkers' Union, so I can understand what's there. It's not like walking through a park, at Assiniboine where you're walking on grass and then you got a hard surface to walk on.

Your times that you misplace and you go to put your foot down and you can sink into a pothole and instead of just dropping in a couple of inches you could be up to your knee. The next step you take you could be on hard ground, and so you're pulling yourself up and you're pulling up your power saw and you move ahead and you're cutting.

Each cord of wood that's cut and produced also has to be moved. There's all kinds of physical labour involved. There's bending and lifting and attaching chokers to the trees to pull the trees out of the woods. And there's also getting back and forth through the sideways where it's all rutted up and you've got to climb over the mud ruts carrying your equipment."

It was in just such conditions that the claimant was injured, eventually undergoing an arthroscopy and arthrotomy on December 16, 1996. At surgery the anterior horn of the medial meniscus appeared loose and there was a longitudinal tear in the body of the medial meniscus. After the surgery it was felt that he should be able to return to work in about six weeks, however, the claimant was unable to do so. The claimant continued to experience knee pain and almost constant swelling of the knee which as related below hindered his numerous attempts to find jobs and sabotaged the jobs that he did obtain.

We now know that the surgery performed on December 16, 1996 did not correct the claimant's problem. He underwent surgery once again on January 13, 2000 as a result of the continuing pain and swelling of his knee since the initial surgery. After his surgery the operative report noted the following:

"The medial compartment of the knee showed a large tear of the posterior horn of the medial meniscus. He had a previous meniscectomy done but he had a tear at the back which of course they could not get at in the open technique The anterior cruciate ligament was stretched and it was not completely torn but he had a grade II Lackman, grade II drawer, grade 0 pivot."

Presently, the claimant has not completely healed and is wearing a brace full time on his knee which he expects to need for the rest of his life.

During the periods of claim acceptability in question, the claimant testified (and this is perhaps where it is so important to give the claimant a full and complete opportunity to go through his history which was not really available on the claimant's WCB file) as to numerous attempts to seek and keep alternate employment. Those attempts include the following:

1. Taking a truck driving course in February of 1997 when he was on welfare with "Partners in Employment". He tried to retrain himself in a different field that did not involve work that was physically demanding to his left leg. However, he couldn't finish the course as it involved getting up and down off the truck on a repeated basis which caused pain and swelling to his knee. He was cut off welfare for failing to complete the course (transcript p. 14). Apparently the levers on the truck for dumping were on the outside of the box which required the claimant to get in and out of the truck repeatedly which caused stress to his knee.
2. Attempting to return to his former employment in April of 1997 (hence the reference on the file to returning to The Pas) only to be told by his former employer to come back when his leg was better so that he couldn't get hurt again. (transcript p. 12)
3. Commencing work at a manufacturing company in Saskatchewan on November 18, 1997 where "a header fell off the chain, a header for the combine fell off the chain, and [he] couldn't move fast enough to get out of the way and it rubbed down [his] ribs and hit me on the hip bone." He couldn't move fast enough to get out of the way because "if he moved too fast, it would go out from underneath [him] anyway, so you have to move slow, and [he] just wasn't fast enough." (transcript p. 13) The claimant was eventually let go from this job because he "would work for two or three days and then [his] knee would be swollen so [he] couldn't work. Eventually they fired [him] for too many days off." (transcript p. 13).
4. Finding employment at a lumber yard from July 22, 1998 to September 2, 1998 where he was once again injured. He stepped on a banana peel and his leg went out from underneath him and he fell against a pile of drywall and hurt his back. He discontinued this employment due to the heavy labour component involved in working in the lumber yard which in turn caused his knee to swell up (transcript p. 14).
5. He looked for forestry work in Bellsite and they wouldn't take him because of his leg. (transcript p. 28).
6. He looked for work in the Birch River, Mafeking area and talked to an individual who he worked for before on a mill. This job involved stacking lumber and the like but he was told that his leg would not stand up to the work. (transcript p. 29).
7. He talked to people in Dauphin where a couple of trucking outfits needed employees to unload heavy items and they wouldn't take him (transcript p. 29).
8. He looked all around Brandon at five or six places without success due to his obvious limp and was told the following: "They'd say, 'Well what's wrong with your leg? Is that going to affect your work?', and I'd say, 'Well my leg is as good as it's going to get according to the Compensation Board,' and they'd say 'come back when you're healthy." (transcript p. 29)
9. He looked for work in Lloydminister and Saskatoon. He was looking in the oil fields. He regularly checked for work at the local Unemployment Insurance Offices as he made his way out west. While the claimant understandably could not recall all the jobs he'd applied for he would regularly check the UIC files and computer printouts. He remembered applying with an explorations company. He was told by them that the job was long hours and long walking and they felt he was not suited for the job due to his knee injury. (transcript p. 34-35).
10. He applied to work for several different stores in Saskatoon stocking shelves and was told they were not hiring at that time (transcript p. 35).

It was after the claimant's job ended with the lumber yard that he began to seriously and persistently approach the WCB about his knee. Eventually he was provided with the assistance he needed and surgery was performed as outlined above.

It is clear to this Panel that the claimant did try on a repeated basis to mitigate his loss. He persistently sought employment within his capabilities and attempted to work at two different jobs unsuccessfully. We are mindful of the fact that the claimant's lack of education and job skills drove him to seek employment in fields where a great deal of physical labour was involved. After all, he had only ever been employed in the physically demanding forest industry at the time of his accident. It was all he knew and all he felt capable of doing. What became increasingly evident to him and what is evident to this Panel is` that he will never be able to return to the physical demands of a forest industry job. With his knee in the condition that it was during the periods in question, it was also evident that he could not perform any job that put stress on his leg and knee. While he may not have initially presented as being totally physically disabled, he was when his background and his employment search are taken into account.

Accordingly, the claimant is entitled to wage loss benefits for the periods of April 15, 1997 to February 18, 1998 and March 4, 1998 to February 3, 1999. We would also recommend the claimant as being an excellent candidate for vocational rehabilitation.

Panel Members

K. Dunlop, Q.C., Presiding Officer
E. Krosney, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 21st day of December, 2000