The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 6, 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 the worker is entitled to wage loss benefits after December 5, 2003.

Decision

That the worker is entitled to wage loss benefits after December 5, 2003 up until the date of her surgery.

Decision: Unanimous

Background

On August 26, 2003, the worker injured her right knee during the course of her employment as a labourer - sanitation - housekeeper. The diagnosis rendered by the treating physician was patellar tendonitis. The Workers Compensation Board (WCB) accepted the claim for compensation and benefits were paid accordingly.

In a progress report dated September 10, 2003, the treating physician specified that the worker was capable of alternate or modified duties where she could sit and that she was to avoid work that involved walking and climbing stairs.

In early October 2003, the worker commenced light duties working in the trim room which entailed sitting at a table and removing spoiled potatoes off a conveyor belt. The worker later reported that the position aggravated her knee condition and she had to stop work on October 14, 2003.

On November 19, 2003, the worker attended a sports medicine clinic and was diagnosed with "…patella femoral pain contributed to with some chondromalacia patella with a question of a mild meniscal tear." An MRI examination was suggested.

The case was reviewed by a WCB medical advisor on December 1, 2003 at the request of primary adjudication. The medical advisor stated that the current diagnosis was unclear, i.e. a meniscal tear versus chondromalacia. He believed that the claimant was not completely disabled and restrictions were outlined, pending receipt of the MRI results, to avoid stairs, ladder climbing, prolonged walking and bending of the knee.

In a memo to file dated December 2, 2003, a WCB case manager noted that the employer was able to accommodate the worker in a "fry inspection position". The worker would be supplied a chair with an adjustable foot rest and stool to rest her leg on. A wheelchair would also be on hand if necessary. Subsequent file information revealed that the worker was to commence modified duties on December 5, 2003 but that she left work on that date because she injured her knee while walking to the building and from putting on her "boot/shoe laces" (memo dated December 8, 2003).

A WCB healthcare consultant reviewed the case on December 8, 2003 which included a hospital report dated December 5, 2003. The consultant commented that there was no objective information in the report to suggest that the worker could not return to work as previously stated.

On December 9, 2003, the worker was advised that the WCB was unable to accept responsibility for wage loss benefits for time missed from work effective December 5, 2003 as she failed to mitigate the effects of her injury by refusing the alternate duties that were made available by her employer.

In a letter dated January 21, 2004, the worker's family physician noted that the worker was scheduled to undergo an MRI scan for her knee problem and was unable to work up until the MRI was conducted.

In a physiotherapy discharge report dated January 22, 2004, it was noted that the worker continued to complain of pain with mobility when seen on December 2, 2003 and that she reported inability to perform the prescribed exercises/rehabilitation program due to pain.

On January 30, 2004, an MRI examination of the right knee was carried out and a short segment horizontal cleavage tear of the medial meniscus was found along with mild chondromalacia patella.

On February 11, 2004, a WCB healthcare consultant reviewed the new medical information and advised primary adjudication that the diagnosis of medial meniscus tear was related to the compensable injury and that the diagnosis of chondromalacia patella was a pre-existing condition and was not related to the compensable injury. The consultant stated there was little objective medical evidence to support the worker's contention of total disability and that the worker could return to work performing alternate duties with restrictions.

In a submission dated February 16, 2004, a worker advisor asked Review Office to reconsider the decision made by primary adjudication dated February 12, 2004. The worker advisor contended that the worker was totally disabled and was not capable of performing the alternate duties offered by her employer.

On March 25, 2004, an orthopaedic surgeon advised the attending physician that the worker would be undergoing a right knee arthroscopy with respect to her medial meniscus tear injury.

In a decision dated June 24, 2004, Review Office determined that the worker was not entitled to receive wage loss benefits after December 5, 2003. Review Office was of the opinion that the weight of medical evidence did not support the worker's contention that she was incapable of performing modified duties. In July 2004, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

On August 10, 2004, prior to the hearing date, the worker underwent a partial medial meniscectomy.

Reasons

The issue before us was whether the worker is entitled to wage loss benefits after December 5, 2003. For the worker's appeal to succeed, we must find that the worker's loss of earning capacity is caused by her workplace injury. In other words we must find that the worker was not capable of performing the modified duties offered by her employer. We did find that the worker was not capable of performing the modified duties and is entitled to wage loss benefits after December 5, 2003.

At the hearing the worker was represented by a worker advisor who made a submission on her behalf. The worker provided information on the workplace incident, her symptoms, medical treatments, difficulty with physiotherapy treatments, problems she encountered when she attempted modified duties and other matters relevant to the issue under appeal. We found the worker to be a credible witness and that her testimony assisted us in arriving at our decision. We note that Review Office did not have the benefit of meeting the worker and receiving her information and explanations.

The employer was represented by an advocate who made a submission on its behalf. The advocate noted the steps taken by the employer to accommodate the worker. The advocate noted that the employer agreed with the Review Office decision.

The Worker's Evidence

The worker advisor argued that the worker was not capable of performing the modified duties. She indicated that the worker had unsuccessfully tried modified duties and had to stop work on October 14, 2003. The worker described the uncomfortable posture involved in performing the modified duties. She acknowledged that the employer had attempted to accommodate her but that the pain was debilitating and she could not continue. She didn't think that the offer of a stool on which to rest her right leg would assist her. At one point she tried the use of an "ergonomic" stool but it did not help. In her view the job offered by the employer on December 5, 2003 was no different than the job she had attempted in October.

With respect to physiotherapy treatments, the worker explained her concerns about the treatments. She noted that the exercises recommended by the physiotherapist caused significant pain. She found that she could not do the exercises.

The worker acknowledged that she went by car to Edmonton in November 2003. At the time of the trip, the WCB had not accepted her claim. When she was asked about the trip she originally denied taking the trip because she did not think it was relevant to her claim.

In response to questions about a massage therapy course, the worker explained that a massage therapist has shown her some massage techniques. These techniques involved the use of her hands and could be performed while seated, for example foot massage. She had not learnt body massage techniques. The worker also advised that she had not written any exams and had not obtained any certification. She advised that she had performed very few massages and was paid with gifts not money.

Conclusion

After considering all the evidence and hearing the submissions on behalf of the worker and employer and the evidence of the worker, we find on a balance of probabilities that the worker was not capable of performing the modified duties offered by the employer.

We commend the employer for its diligence in attempting to accommodate the worker. Unfortunately the accommodations were not successful and the worker could not return to work.

We note that subsequent to the attempts to return to work and subsequent to December 5, 2003, the worker's condition was confirmed by an MRI scan as a tear of the body of the medial meniscus with an extension of the tear to the free edge. We find this diagnosis supports the worker's comments that the modified duties caused her significant pain.

We note that the physician the worker was seeing during the absence of her family physician provided a note on December 3, 2003 indicating that the worker should be booked off work until the MRI is done.

After the MRI report was received the worker's family physician advised the WCB that:

"She is being put on the urgent list for right knee arthroscopic surgery. Anything that causes turning of her body onto the knee either sitting or standing she cannot do including sitting at a desk."

We note and attach significant weight to the operating orthopaedic surgeon's report dated September 22, 2004:

" ….Prior to arthroscopy, she was having great difficulty positioning herself at her work station at (employer's name), due to inability to position the affected limb comfortably. There is apparently some question as to whether this condition should have affected her job but I think there should be no doubt that her knee condition was significant enough to result in a significant compromise of her knee function, including positioning of her leg at work."

We accept the worker's testimony that the positioning of her leg while performing the modified duties caused significant pain and accordingly find that the modified duties were not appropriate.

In arriving at its decision, Review Office expressed concern that the worker did not comply with the recommendation of the physiotherapist. We find, given the diagnosis of a tear of the medial meniscus and the pain caused by the exercise, it was reasonable for the worker not to perform the exercises recommended by the physiotherapist.

The worker's appeal is allowed and accordingly, she is entitled to wage loss benefits after December 5, 2003.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of October, 2004