Decision #70/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on May 15, 2002, at the request of the employer. The Panel discussed this appeal on May 15, 2002.

Issue

Whether or not the worker is entitled to benefits for the period November 19, 2001 to December 5, 2001.

Decision

The worker was entitled to benefits for the period November 19, 2001 to December 5, 2001.

Decision: Unanimous

Background

During the course of his employment as a maintenance worker on November 2, 2001, the claimant alleged that he was walking along doing his job when all of a sudden his left knee just popped.

On November 6, 2001, the employer's district manager wrote to a Workers Compensation Board (WCB) adjudicator and provided the following information:
  • on October 23, 2001, a meeting was held with the claimant to follow up on a "Condition of Employment". At another meeting on October 29, 2001, the claimant was placed on an "Attendance Warning." Feedback obtained from the claimant's direct supervisor was that the claimant was quite upset and displayed a negative attitude about work and made several offensive statements.

  • on the morning of the alleged injury, the district manager asked the claimant whether she could drive him to the doctor as he was unable to walk. A few minutes later the claimant indicated he was fine to take the bus. On November 5, 2001, the claimant stated that he was going to be off for another week and that his doctor was sending in a report. An employer's report was then filled out and was sent to the WCB. Later that day, the claimant was advised of company policy and was told to see the company doctor and to take the necessary forms with him for the doctor to fill out. The claimant became very irate and advised that he could not attempt to see the company doctor before Friday.
Medical reports on file revealed the following information:
  • on November 2, 2001, the treating physician noted that the claimant was walking at work and felt his knee pop. Objective findings were tenderness in the left lateral knee and limited flexion. The treatment plan included rest, ice compression, etc. With respect to modified duty work, the physician stated "possibly, if not needing to walk."

  • x-rays of the left knee dated November 2, 2001, revealed no significant bone or joint abnormality.

  • on November 5, 2001, the treating physician reported tenderness in the left lateral knee with improvement in flexion and weight bearing. The treatment plan included rest. It was estimated that the claimant could return to his regular duties by November 13, 2001.

  • on November 9, 2001, the treating physician referred the claimant to an orthopaedic specialist to determine whether or not the claimant sustained possible meniscal damage.

  • a Company Medical Assessment dated November 9, 2001 noted that the claimant was not to stand, walk without crutches or bend at the knees. The claimant was not capable of any work from November 2, 2001 to November 16, 2001. On November 19, 2001, the Company Medical Assessment outlined a number of restrictions for the claimant except for sitting. It noted that the worker would not be capable of working between November 16, 2001 and December 3, 2001.
When speaking with the claimant on November 19, 2001, a WCB adjudicator recorded that the claimant was walking up a ramp when he felt his knee "explode." He stated he did not lose his footing, trip or fall and could not see any hazard. The claimant indicated that a couple of years ago he broke his left knee when he fell out of a semi truck. He was dry casted for a few weeks and then was fine. He denied any problems until his date of accident.

On November 27, 2001, the claimant told a WCB adjudicator that his employer had no light or modified duties available to him and he was advised to stay off work until he was fit to return to full duties.

On December 4, 2001, primary adjudication advised the claimant that his claim had been approved for at least one week of time loss and that the light duty issue would be discussed with his employer. At this time, the claimant stated that no one talked to him about light duties and that he was expecting to return to work by December 6, 2001. Subsequent file correspondence showed that neither the employer's district manager or head office discussed light duties with the claimant.

In a memo dated December 20, 2001, the WCB advised the claimant that his claim had been accepted until December 5, 2001 inclusive. This was the date he was declared fit as a result of his compensable injury. No further responsibility would be accepted for his knee beyond December 5th as any further problems were likely related to his prior knee difficulties.

On December 12, 2001, the employer contested the validity of the case. The employer noted that the claimant was performing the basic act of walking when he allegedly hurt his knee. The employer found it hard to believe that the claim would be accepted on the basis of a person performing this very basic function. If he could not walk, then he would not have been able to execute the job duties as assigned to him.

The employer stated that when the claimant was first injured, he was provided with written documentation that stated modified duties were available, along with two possible positions. The employer also stated that the claimant was given a letter to take to his doctor that stated that modified duties were available. Finally, the employer indicated that on November 19, 2001, a WCB staff member advised them not to approach the claimant regarding modified duties as the claim had not been accepted beyond this point. The employer concluded that the company was not neglectful in providing the opportunity of modified duties but rather, it was misinformed of when these duties should be implemented.

In a January 25, 2002 decision, Review Office documented that it called the district manager. At the time of injury, she was not aware of the requirements under the new company policy. She therefore did not inform the claimant of modified duties or the need to see the company doctor at the time of his injury. Forms were given to the claimant to take to the company doctor the same day he saw the doctor. The claimant advised the supervisor that the clinic had the forms. Modified duties were explained to the claimant then, however the employer needed those forms prior to initiating a return to work.

Based on a balance of probability, Review Office felt the claimant did sustain injury at work on November 2, 2001. He reported it to his employer and attended a physician on the same day. The claimant was advised to rest and avoid walking. On November 9, 2001, the company physician advised the claimant to rest his knee and a report to the employer advised he could sit without restriction, and he would not be capable of any work from November 2nd to 16, 2001. On December 3rd the worker was advised to return to regular duties on December 6, 2001.

Review Office commented that the claimant did not have a driver's license and depended on bus services. Based on medical evidence, any walking could have been outside the worker's restrictions, especially considering winter conditions. Review Office concluded that the claimant was entitled to payment of benefits to December 5, 2001 inclusive. On March 12, 2001, the employer appealed Review Office's decision and an oral hearing was arranged.

Reasons

This case involves a worker who injured his knee while at work. His claim for compensation benefits was accepted by the board and benefits were paid accordingly.

His employer appealed the board's decision to pay the benefits for the full period, arguing that the claimant could have worked at alternative duties for the last two weeks of the period in question. Review Office upheld the adjudicator's decision. The company then appealed to this Commission.

The specific issue before the Panel was whether or not the claimant was entitled to benefits for the period November 19 to December 5, 2001.

For the appeal to succeed, the Panel would have to determine that modified duties, within the claimant's restrictions, were available and that this had been clearly communicated to the claimant by the employer. We were not able to make that determination.

In coming to our decision, we had the benefit of an oral hearing, at which we heard testimony from both the claimant and the employer.

In his testimony, the employer's representative noted that the company's policy in respect of alternative duties was included in a letter sent to the claimant shortly after the accident. At the same time, he was directed to see the company's doctor. There was other, conflicting, evidence on file in respect of this communication with the claimant about alternative duties. One company representative stated that, beyond the above-noted letter, the company did not discuss this matter further with the claimant. It was alleged that this was, in part, due to a direction from a board staff person telling the company not to push the matter of alternative duties until the claim had been accepted. As there is nothing in the file to corroborate this, we were unable to give much weight to this statement.

However, what we did find to be determinative of the matter were the reports of the company's doctor. She examined the claimant on November 19, 2001 and reported that he would not be able to return to normal duties for at least two weeks. She did note that he would be able to perform modified duties, if they were restricted to sitting only. At her second examination of the claimant, on December 3, she concluded that he would be able to return to normal duties on December 6.

Upon considering this evidence, we have concluded that, on a balance of probabilities, the company did not clearly communicate to the claimant that it had alternative duties that were within his restrictions.

We uphold the decisions of the adjudicator and the Review Office that the claimant is entitled to benefits for the period November 19, 2001 to December 5, 2001, inclusive.

Accordingly, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
B. Popowich, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of June, 2002

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