The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on August 15, 2002, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not the claimant is entitled to payment of temporary total disability benefits beyond August 6, 1999.

Decision

That the claimant is not entitled to payment of temporary total disability benefits beyond August 6, 1999.

Decision: Unanimous

Background

This case had been the subject of previous Appeal Panel hearings. Complete details surrounding the history of the claim can be found under Appeal Panel Decision Nos. 50/96 and 13/02 and will not be repeated in its entirety at this time.

Briefly, the claimant was pinned against a wall by a jumbo drill on August 10, 1978 during the course of his employment as a heavy duty mechanic. As a result of the accident, the claimant sustained injuries to his left knee and both thighs. The Workers Compensation Board (WCB) accepted the claim for compensation and various benefits were paid.

Under Appeal Panel Decision No. 50/96, the Appeal Panel made the determination that the claimant was capable of working 40 hours per week at sedentary duties. Based on this finding, the claimant was awarded Special Additional Compensation (SAC) benefits.

On February 8, 1999, the claimant underwent a left total knee replacement and was paid temporary total disability (TTD) benefits, less SAC benefits, up to August 6, 1999, when it was determined that the claimant had recovered from his surgery and was capable of working with restrictions. The claimant was then placed back on SAC benefits.

In a December 6, 1999 letter to the WCB, the attending orthopaedic surgeon opined that the claimant was still disabled and that it was unlikely that he could return to gainful employment. The orthopedic surgeon noted that the results of the left total knee replacement were not totally satisfactory largely because of the significant varus deformity of the left femur which was not correctable by the total knee replacement. The left knee was still in a varus position because of a previous varus osteotomy of the distal femur. The surgeon noted that the claimant had arthritis of his right knee, mainly in the patellofemoral joint and he also had arthritis of his hips which had been contributing to the claimant's ongoing disability.

On December 20, 1999, a WCB medical advisor reviewed the above report and provided the opinion that the claimant was only fit for sedentary work given his left knee instability. On February 9, 2000, the WCB informed the claimant that based on the medical advisor's opinion, he was still considered fit for sedentary duties and that no change would be made to the decision to pay benefits to August 6, 1999. In March 2000, the claimant's advocate appealed this decision to Review Office.

On April 7, 2000, Review Office determined that the claimant was capable of performing sedentary duties and that he was not entitled to TTD benefits beyond August 6, 1999. Although the worker had restrictions from employment, Review Office determined that he would still be capable of performing sedentary duties taking into consideration his restrictions. On July 21, 2000, the claimant's advocate appealed this decision to the Appeal Commission. Arrangements for the hearing were held in abeyance until the claimant was assessed at the WCB of British Columbia for a PPI evaluation.

On December 13, 2001, an Appeal Panel hearing took place to determine whether or not the claimant was entitled to payment of TTD benefits beyond August 6, 1999 and whether or not he was entitled to an increase in his permanent partial disability award. The issue relating to the claimant's further entitlement to TTD beyond August 6, 1999 was withdrawn by the claimant at this time.

In a submission dated April 3, 2002, a worker advisor requested that the claimant's deemed rate at the provincial minimum hourly rate be reconsidered based on the claimant's February 8, 1999 surgery. Reference was made to reports by the claimant's attending orthopaedic surgeon dated December 6, 1999 and January 17, 2000, which the worker advisor felt confirmed that the claimant was now unemployable.

On April 9, 2002, a WCB medical advisor reviewed the information on file. He stated that there was no clear evidence of this claimant's being totally impaired based on the recent orthopaedic specialist's report. On May 7, 2000, a WCB case manager advised the claimant that it was still the WCB's position that the claimant was able to resume some type of employment. The case was then referred to Review Office for further consideration.

On May 24, 2002, Review Office determined that no change would be made to its April 7, 2000 decision that the claimant was capable of performing sedentary duties and was not entitled to TTD benefits beyond August 6, 1999. Review Office noted that it was the attending orthopaedic surgeon's belief that the WCB had accepted responsibility for the claimant's right knee and bilateral hip arthritis. Review Office found that the surgeon was misinformed and that the acceptable compensable conditions on this claim related only to the claimant's left knee and lumbar area.

Review Office further noted that the attending orthopaedic surgeon attributed the claimant's inability to be gainfully employed to his multitude of health problems, his education and having worked at only physical jobs throughout his years. The surgeon's opinion appeared to be based on these factors and was not inclusive of only the acceptable compensable injuries. Review Office stated that its decision could only be limited to the conditions which were accepted as compensable involving the left knee and lumbar spine. The medical evidence therefore had not established that the claimant was totally disabled with respect to his left knee and lower back compensable conditions. In June 2002, the worker advisor appealed Review Office's decision and a non-oral file review was arranged.

Reasons

After thoroughly reviewing the evidence, we find no basis to disturb the Review Office's decision that the claimant is not entitled to payment of temporary total disability benefits beyond August 6th, 1999. The diagnosis of osteoarthritis of the right knee and both hips is not, on a balance of probabilities, causally related to the original compensable injury to the claimant's left knee and lower back for which the WCB has been paying compensation. There is no medical evidence on file to support the contention that the claimant's osteoarthritis is a sequela or part of a reactive mechanism of a need to compensate for his left knee difficulties. Accordingly the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 23rd day of September, 2002