The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 27, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not a compensable loss of earning capacity exists beyond September 19, 2001.

Decision

That a compensable loss of earning capacity does exist beyond September 19, 2001.

Decision: Unanimous

Background

On March 5, 1997, the claimant twisted his left knee during the course of his employment as an industrial mechanic. As a result of the accident, the claimant underwent arthroscopy on November 5, 1997 and a partial meniscectomy was carried out. The claim for compensation was accepted by the Workers Compensation Board (WCB) and benefits and services were paid to the claimant. In March 1998, the claimant was cleared to return to his regular duties.

In a memo dated November 23, 2000, the claimant advised his case manager that since his return to work in 1998 he had no problems relating to his knee injury but as time went on he started to have pain in both knees. The claimant related his left knee problems to the March 1997 accident.

In May 2001, the claimant discontinued working as his employer was unable to accommodate him with work duties that respected the restrictions outlined by his treating physician. Effective May 11, 2001, the claimant was reinstated on wage loss benefits.

On June 12, 2001, a WCB orthopaedic specialist reviewed the file information and was of the view that a direct cause/effect relationship existed between the claimant's current left knee condition and the compensable accident of March 3, 1997. A Functional Capacity Evaluation (FCE) was suggested and was later carried out on July 17, 2001.

Following the FCE, a WCB medical advisor reviewed the results and outlined restrictions for the claimant to avoid heavy lifting greater than 20 lbs. and to avoid excessive/repetitive knee bending, twisting, squatting or climbing. The restrictions were to be reviewed in six month's time.

On August 27, 2001, a return to work meeting took place. It was determined that the employer was able to accommodate the claimant with sedentary work in the drill bit sharpening area, in which the claimant could sit, stand and take breaks, whenever needed. During the meeting, the claimant complained about dizziness and this concerned him about performing the return to work duties. The claimant said that he was taking one Vioxx per day, ten Tylenol 3s, Extra-Strength Tylenol as well as medications for sleep and high-blood pressure.

After three hours of work on August 28, 2001, the claimant complained of dizziness and his not being able to perform his job duties. He felt the dizziness was due to his taking Tylenol #3's and Vioxx.

Following several discussions involving the claimant, the employer and the attending physician as well as consultation with the WCB's healthcare branch, the claimant was advised on September 21, 2001, that his wage loss benefits would not be extended beyond September 19, 2001. In this regard, the case manager stated the following:

"It was determined that Tylenol 3 medication was the cause of the dizziness, and for the past 2 weeks, we have been discussing your use of Tylenol 3, with you and your attending physician Dr. [name]. The dizziness is a barrier for your return to work and you were to discuss the alternatives for medication with Dr. [name] at your appointment on September 19, with the plan of returning to your modified duties on Thursday, Sept. 20. It is unclear as to why you continue to use Tylenol 3, given the side effect of dizziness.

Upon discussions with our Health Care Department Section Head we have concluded that there are many different non-steroid medications available to you, that would allow you to continue with the return to work in modified duties, without dizziness. Some examples of alternate medication noted were Celebrex, a higher dosage of Vioxx, extra strength Tylenol, to name a few.

It is your responsibility to mitigate your loss per Section 22 of the WCB Act, which indicates that if a worker "fails to mitigate the consequences of the accident, the board may in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable were such practices not persisted …"

By continuing with the Tylenol 3 medication, you are removing yourself from the modified return to work, which had been accommodated for you by the employer, and no wage loss would have been payable."

On December 7, 2001, the case was considered by Review Office following receipt of an appeal by the claimant. Review Office determined that a compensable loss of earning capacity did not exist beyond September 19, 2001. Review Office considered the opinion expressed by a WCB Addiction and Chronic Pain Consultant on November 23, 2001. Review Office took the position that the cause of the claimant's dizziness was unknown and therefore could not be related to his left knee injury of March 5, 1997.

Review Office was also of the opinion that the claimant's modified duty program respected the restrictions placed on his return to work. Review Office felt the claimant did not mitigate the situation to the best of his ability regarding potential attempts to work around the issue regarding usage of Tylenol 3. Thus there was not a compensable loss of earning capacity as of September 20, 2001 when there was expectation that the claimant would be returning to work on appropriate modified duties available through the employer. On October 28, 2003, a worker advisor, acting on behalf of the claimant, appealed this decision and an oral hearing was convened.

Reasons

At the outset of the hearing, the worker advisor acting on behalf of the claimant indicated that the claimant was seeking wage loss benefits for the period of September 19^th, 2001 to October 4^th, 2002 during which the claimant was involved in a modified work position. The claimant contends that he was only capable of working half of an 8 hour shift (i.e., 4 hours) until his knee surgery in October 2002.

Based on the preponderance of evidence, we find that the claimant was not, on a balance of probabilities, physically capable of working a full 8 hour shift through out the period in question due to the impact of the medications being consumed by him as a consequence of his compensable injury. The claimant testified at the hearing about the difficulties that he was encountering with his various medications.

Q. I want to go back to the August time period when you experienced the lightheadedness. At that point, can you remember how you were taking your Tylenol 3s, when you went back to work and you had that lightheadedness? Where you taking them during work and immediately before?

A. I think I was taking them, well, as needed, but I was taking them like seven, eight a day.

Q. So you would have taken them in the morning and then during the day?

A. Taking them throughout the day, yes.

Q. Okay. As I understand it, and help us with this, you could function doing four hours a day drill sharpening, but you could not do eight hours of it. Is that because that work wasn’t available or is it because of your pain and your Tylenol 3s?

A. The work was available, but by, like I mentioned that by working four hours, I would take the Tylenol 3 like two hours before I left for work - -

Q. Right

A. - - and I wouldn’t take it again until I got home from work.

Q. Right.

A. You take it every six hours normally.

Q. Right

A. Therefore, there was not Tylenol 3 usage at work. And the company sent me home - - it was the company that sent me home in August. I didn’t go home on my own. They sent me home in August, the nurse did, and refused to let me back to work until the problem was resolved, and that’s how we resolved it. We fought with the company for an entire month to get them to let me work the four hours and, as I said, I would take the Tylenol two hours before I left for work - -

Q. Yes.

A. - - and again when I got home.

Q. So it was an agreed solution then, so there would be a safety issue resolved from your perspective and the company’s, also dealing with your medication so you could work in a safe manner and not have to take medication while you were there - -

A. That’s correct.

Q. - - to have you work the four hours? That’s why it was agreed on to do four hours?

A. Right, that’s correct, yes.

The claimant submitted in evidence (Exhibit 2) a list of the medications that he was taking together with the dispensing pharmacy’s prescription information. We noted in particular the common possible side effect of the following medications:

Although the WCB had been insisting the claimant change medications, the WCB’s addiction and chronic pain consultant nevertheless confirmed the claimant’s continuing the high consumption of Tylenol 3’s as being appropriate. As such, it is reasonable to conclude that any successful return to work program would have to take into consideration these possible side effects. “I would recommend that the claimant remain on this dose of Tylenol#3’s i.e., 7 per day and have it maintained and controlled by his family physician as it is being done at the present time.”

It is clear from the evidence that both the worker’s union and the employer shared a common concern regarding the claimant’s dizziness as being a potential and very real safety issue. In an attempt to address this concern, the claimant testified that he took his medication two hours prior to his attending work and this then allowed him to work for 4 hours before having to take his next dose of medication.

We find that this accommodation effectively limited the claimant to a 4 hour work day. In addition, we note in particular certain comments recorded by a manager of rehabilitation and compensation services in a memorandum to file dated April 18^th, 2002.

“Furthermore, there is medical information on file from Dr. [treating orthopaedic surgeon] from Sept/01, as well as continuous updates from Dr. [attending physician], suggesting 4 hours/day is Mr. [claimant’s] limit. It is my opinion given the medical information on file regarding the amount of time Mr. [the claimant] can work in his modified duties, that Mr. [the claimant] has an ongoing entitlement to Partial Wage Loss commencing October 16^th, 2001, when he returned to the workplace in the alternate position. The previous decision to discontinue benefits was made on the non-compliance issue due to the dizziness/medication issues which was maintained by Review Office.”

We further find after having considered all of the evidence that a compensable loss of earning capacity exists beyond September 19^th, 2001. Accordingly, the claimant’s appeal is hereby allowed.

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 10th day of March, 2004