The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 10, 2002, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on September 10, 2002 and again on April 11, 2003.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond July 31, 2001.

Decision

That the claimant is entitled to future wage loss benefits contingent on her full cooperation with the Workers Compensation Board and her employer with respect to a graduated return to work program respecting her compensable restrictions.

Decision: Unanimous

Background

On May 6, 1997, the claimant injured her right knee during the course of her employment as a registered nurse. Medical information confirmed that the claimant incurred a medial meniscus tear as a result of the accident and has pre-existing conditions of patellofemoral arthritis and associated articular cartilage degenerative changes. The claimant sustained a compensable back injury in 1992 and has evidence of lumbosacral disc disease.

In March 2001, a WCB medical advisor determined that the claimant was ready to commence a graduated return to work program as a registered nurse at a nursing home. The medical advisor outlined a number of specific work place restrictions relative to the right knee which were to be in place for at least one year.

In a letter dated June 19, 2001, the claimant was advised that her graduated return to work program would run between June 18, 2001 and July 13, 2001, after which she would have achieved her pre-accident status. The claimant did commence the graduated return to work program as planned but experienced ongoing difficulties with her right knee and had a number of concerns over the job duties that she was asked to perform.

Following consultation with the WCB's healthcare branch, a WCB case manager wrote to the claimant on July 12, 2001. The claimant was advised that there was no compensable medical reason to support her contention that she was unable to participate in the graduated return to work plan. Reference was made to Section 22 of The Workers Compensation Act which stipulated that every worker had an obligation to help mitigate the consequences of a compensable accident and that if a worker failed to do so, the WCB may reduce, suspend or terminate benefits. The claimant's benefits were later suspended as of July 31, 2001 as the claimant missed time from the return to work program due to right knee complaints.

On September 13, 2001, the WCB confirmed to the claimant that no further benefits were payable as the graduated return to work program had ended. She was now considered capable of performing all regular work activities as a registered nurse.

On December 6, 2001, the claimant's solicitor submitted new medical information from a physical medicine and rehabilitation consultant dated November 5, 2001 and from the family physician. Based on this new evidence, the solicitor contended that the claimant was incapable of performing the regular duties of a registered nurse and was incapable of completing the return to work program due to recurring pain and inflammation in her right knee.

In a response dated January 8, 2002, primary adjudication informed the claimant that the new medical information had been reviewed by a WCB medical advisor. It was the medical advisor's opinion that there was no change in the previously outlined work restrictions and that she continued to suffer from degenerative changes in her knee. It was the WCB's opinion that the claimant was still capable of performing her workplace activities as a registered nurse. On January 28, 2002, this decision was appealed by the claimant's solicitor to Review Office.

On March 15, 2002, Review Office determined that wage loss benefits were not payable beyond July 31, 2001. Review Office noted that there seemed to be some confusion over the job description that was provided to the claimant's physical medicine and rehabilitation specialist, as he seemed to be under the impression that the claimant's return to work program was normal, very physical activities of a registered nurse. The position that the claimant was actually performing for the employer did not include the significant physical activities that are often required of a registered nurse, i.e. kneeling, squatting, lifting and transferring. Review Office felt that it was important to clarify this apparent confusion.

Review Office felt that an incredible amount of time and effort had been placed into accommodating the claimant into the modified duty program. The entire situation was significantly clouded by job dissatisfaction and employer/employee relations, which the claimant admitted to have weighed heavily on her mind and have undoubtedly had an impact on her physical and mental status. Review Office concluded that the claimant was fit for the job description which was on file representing her return to the workforce and supported the decision by primary adjudication dated September 13, 2001. In June 2002, a worker advisor disagreed with this decision and an oral hearing was arranged.

Following the hearing of September 10, 2002, the Panel met to discuss the case and it was determined that additional information was required, prior to discussing the case further. Specifically, the Panel requested that a medical report be obtained from the worker advisor that she had in her possession and that a Medical Review Panel (MRP) be convened in accordance with section 67(3) of the Act.

A MRP took place on March 13, 2003. A copy of the MRP's report along with a medical report dated May 8, 2002 and bone scan/lab results were forwarded to the interested parties for comment. On April 11, 2003, the Panel met to further discuss the case and render a decision with respect to the issue under appeal.

Reasons

This case involves a worker who injured her knee in a workplace accident in May 1997. Her claim for compensation was accepted and benefits paid accordingly. After two operations and two unsuccessful graduated return-to-work efforts, her benefits were terminated on July 31, 2001. That decision was upheld on reconsideration by Review Office. She then appealed to this Commission.

The issue before the Panel was whether or not she is entitled to wage loss benefits beyond that date.

For her appeal to be successful, the Panel would have to determine that her continued inability to return to the workplace is related to her compensable injury of May 1997. We did come to that conclusion, with some qualifications as will be set out below.

In coming to our decision, we conducted a full review of the claim file. We also held an oral hearing at which we heard testimony from the claimant, as well as argument from representatives of the claimant and the employer. Subsequent to the hearing, the Panel sought additional medical reports and referred the claimant to a Medical Review Panel for further medical examination.

We would note the following points by way of further background:

• Surgery was first performed on her knee in December 1997.
  
  
• She commenced a graduated return-to-work program in March 1998, but was unable to continue for long in this as she experienced continuing knee and back pain. (The back pain is not relevant to this particular appeal.)
  
  
• Her benefits were terminated in June 1998, on the basis that she was no longer disabled from performing her normal duties.
  
  
• In December 1999, her union requested, on her behalf, that the above decision be reconsidered.
  
  
• On reconsideration, the Review Office found that she had not recovered from the effects of her compensable injury and benefits were reinstated.
  
  
• Surgery was performed on her knee, for a second time, on April 6, 2000.
  
  
• Subsequent to an examination by a board medical examiner, in March 2001, a fairly lengthy list of workplace restrictions was drawn up.
  
  
• A second graduated return-to-work program was started on June 18, 2001. This program had been designed to accommodate the above-noted restrictions.
  
  
• By the second day, she had to leave work early due to swelling and pain in her knee. She did not work the next three days. She worked for two hours per day for 8 of the following 9 workdays. She then did not work for eleven days, following which she worked 10 days at two hours, then two days at four hours.
  
  
• The last day was July 31, 2001. She has not worked since that day. On August 1^st, her doctor gave her a note instructing her to remain off work for three weeks, due to acute pain and inflammation in her right knee.
  
  
• Her compensation benefits were suspended on that day. On September 13, 2001, this suspension became permanent, as it was felt that she was capable of performing the duties required of the position.

In order to resolve the issue before us, we have to determine - on a balance of probabilities - whether or not the claimant was capable of performing the duties assigned to her during the second return-to-work program; and whether or not she continues to have a loss of earning capacity due to the workplace accident.

In respect of the first matter, we are persuaded that the restrictions that were assigned by the board medical advisor in the spring of 2001 were appropriate and within the capabilities of the claimant. However, we have found that the work duties given to, or expected of, the claimant exceeded these restrictions.

We base this, in part, on the evidence of the claimant, who has argued since June/July 2001 that more was expected of her in the workplace than allowed for in the restrictions. She has consistently made the point that her co-workers were not advised of the restrictions placed upon her.

We find further support for this conclusion in the medical record from that period. Her treating physician noted the increased swelling and pain experienced very shortly after she started the program. On two occasions in this time, her doctor wrote certificates taking her off work, once from July 5 to 16 and again from August 1, for three weeks.

Still further support is found in a letter from a vice-president of the regional health authority, who admitted that this particular return-to-work program had not been well- conceived. She wrote:

• "The partnership with WCB for a rehab work program was a first experience for [employer's name], consequently it appears that there was not a clear understanding respecting process."
  
  
• "…. perhaps your physical restrictions should have been more carefully assessed in relation to the job requirements."
  
  
• "I must conclude that your experience at [employer's name] in the WCB rehab program results in an unfortunate set of circumstances and a series of misunderstandings due to lack of process and role clarity."

With respect to the second matter, the current state of her compensable injury, we referred the claimant to a Medical Review Panel (MRP). We found their conclusions to be persuasive and relied on the following in support of our decision:

• The MRP came to this impression: "There is osteosarthritis affecting the right knee, and there has been progression of medial compartment joint space narrowing from 1997 to 2001."
  
  
• "The Panellists agree that, in part, the claimant's current right knee condition is a result of the workplace injury which occurred in May 1997. The causal relationship is that there was acceleration of pre-existing osteoarthritis."
  
  
• "…. agree that, in part, her current right knee condition is due to the operations, and in particular to the operation of 2000. …. removal of the meniscus to this level allows full transmission of force from the femur to the tibia. This results in increased degenerative changes in the knee joint, as a result of the procedure. …. agree that this level of excision was required because of the extent of the tear."
  
  
• "…. agree that the claimant's current right knee condition is due, in part, to a pre-existing condition which …. was degenerative disease of the joint, also termed osteoarthritis."
  
  
• "…. agree that the pre-existing condition was permanently enhanced by the workplace injury …. a tear of the meniscus resulted in enhancement of the underlying degenerative disease."
  
  
• "…. there is no way to determine whether the first noted tear of the meniscus was due to trauma or due to a pre-existing degenerative disease." The MRP does note that the tear may or may not have occurred at the time of the injury. While it was more typical of a pre-existing disease, "in the presence of degenerative joint disease, a meniscal tear can occur without much stress …."
  
  
• "The second menisectomy, because of the extent of the meniscal surgery, would predispose to an increased rate of degenerative changes in the joint."

From the MRP report, we have concluded that:

• The initial injury was caused, at least in part, by the workplace accident.
  
  
• The initial surgery, necessitated by the workplace injury, led to further degeneration of her knee joint.
  
  
• This led, in turn, to the second surgery, which has contributed to still further degeneration.

Board Policy 44.10.20.10, Pre-Existing Conditions, provides the following:

1. Where a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker's Compensation Board will accept responsibility for the full injurious result of the accident.
   
   
2. Where a worker has:
   1. recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
   2. the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment, and
   3. the pre-existing condition is not a compensable condition,
      
      
   the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

…. where it is determined that the worker's inability to work is a result of a compensable accident and evidence suggests, on a balance of probabilities, that the accident, or the accident in concert with the pre-existing condition, is causing the on-going loss of earning capacity the WCB would pay so long as the loss of earning capacity continues.

In applying the provisions of this policy to the findings of the MRP, we find:

• In line with subsection (a), this claimant's loss of earning capacity was caused in part by a compensable accident.
  
  
• In considering subsection (b) 2), we would note that the MRP found that her pre-existing condition has been permanently enhanced as a result of her workplace accident.

Based on the foregoing, we conclude that the claimant is entitled to wage loss benefits beyond July 31, 2001. However, as noted earlier in these reasons, we do attach some qualifications to that finding.

We are not convinced that she has made any serious efforts to mitigate her wage loss. To that end, we are of the view that wage loss benefits should not be paid retroactively, but should be prospective, commencing when she begins a renewed return-to-work program. This reflects the requirement of section 22 of The Workers Compensation Act and Board Policy 44.10.30.60, which make it incumbent upon the claimant to mitigate the consequences of the accident.

We also note the MRP findings in respect of restrictions. The panel found that she should have been able to return to work, in June/July 2001, with these restrictions in place. As we have noted above, there is evidence that she was expected to work beyond these restrictions. However, the MRP has concluded that, if adhered to, these restrictions are still appropriate and reflective of her capabilities.

We also find some evidence that the claimant was less than fully co-operative with the employer in fulfilling the requirements of the return-to-work program. There are indications in the file that there were some labour relations issues at play that are beyond the scope of this appeal. We would make it a requirement, for future benefits, that the claimant be fully co-operative in any such program.

We would add that such programs involve at least three parties, the worker, the employer and the board. It will be incumbent upon all to ensure that any future program be achievable and address the admitted shortcomings of the second involving this claimant.

Finally, we would note that the employer's representative testified that the employer would have liked her return-to-work program to have succeeded, as the claimant has many years of valuable experience to offer. Support for this sentiment was found in the comment of one member of the Medical Review Panel.

To summarize, our conclusions are:

1. The claimant's pre-existing condition was permanently enhanced by the compensable injury.
   
   
2. The claimant is entitled to wage loss benefits, but not retroactively. Wage loss benefits are to be paid once she enters a return-to-work program and demonstrates full co-operation in making the program succeed.
   
   
3. The restrictions assigned to the claimant in 2001 are still appropriate.

Accordingly, the appeal is allowed, as set out above.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 12th day of May, 2003