The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 16, 1998 at the request of a worker advisor, acting on behalf of the claimant. The claimant was appealing decisions made by the Review Office of the Workers Compensation Board (WCB) which determined that he was not entitled to vocational rehabilitation assistance or to wage loss benefits beyond December 29, 1996. In addition, the Review Office did not grant the claimant's request for a Medical Review Panel. Following the hearing and after receipt of a requested medical report from the claimant's treating sports medicine specialist, the Panel met on February 9, 1999, to render its final decisions.

Issue

Whether the worker is entitled to vocational rehabilitation assistance;

Whether the worker is entitled to wage loss benefits beyond December 29, 1996; and

Whether a Medical Review Panel should be convened.

Decision

That the worker is not entitled to vocational rehabilitation assistance;

That the worker is not entitled to wage loss benefits beyond December 29, 1996; and

That a Medical Review Panel should not be convened.

Background

The claimant sustained compensable right knee injuries during the course of his employment as an aircraft cleaner in October 1986, June, 1988 and a recurrence in October 1988. In 1994, an orthopaedic specialist reported significant patellar femoral problems with the claimant's right knee and on January 26, 1995, a partial patellectomy and lateral release of the right knee was performed. The operative procedure was accepted as a responsibility of the Workers Compensation Board (WCB) and was considered related to the previous compensable accidents.

Following physiotherapy and a period of convalescence, the claimant was considered fit for work and was paid wage loss benefits up to May 26, 1995. Effective December 1, 1995, benefits were reinstated as the claimant began to experience an increase in right knee discomfort which he related to his employment activities as a self-employed contract worker.

On March 21, 1996, a sports medicine specialist diagnosed chronic, post-traumatic patellofemoral pain syndrome which he related to the claimant's work activities. The specialist remarked that none of the claimant's physical findings would preclude him from working although physical findings would limit him from being able to perform dangerous work (working on a scaffold), due to his quadriceps insufficiency. There was also some concern with climbing excessive stairs or working on a ladder.

On April 15, 1996, a WCB medical advisor reviewed the case and was of the opinion, based on a balance of probabilities, that the claimant's knee problems were related to the previous compensable injury and to the surgery. The medical advisor believed that the claimant was only fit for modified duties with the avoidance of excessive stairs and ladder climbing and to avoid squatting and kneeling for a duration of three months.

The claimant was then seen by a second sports medicine specialist on June 5, 1996, who diagnosed chronic retinacular sprain. The claimant was referred to athletic therapy for quads/hams strengthening on the basis of Cybex test results. X-rays of the right knee taken at this time revealed multiple radio-opaque densities in the infrapatellar region consistent with synovial osteochondromatosis.

The claimant was examined by an orthopaedic specialist on September 9, 1996, regarding right knee symptomatology. The specialist commented that the claimant appeared to have cartilaginous loose bodies and stated he would benefit from having his knee scoped. On October 9, 1996, the claimant underwent an arthroscopy which was accepted as a responsibility of the WCB.

In a subsequent follow-up report from the orthopaedic specialist dated October 10, 1996, the claimant exhibited moderate effusion of the knee and stated that his knee felt better. On November 7, 1996, the specialist stated the claimant had mild effusion and that his quads were markedly down. He felt the claimant would benefit from another three weeks of physiotherapy and would be ready to return to work.

In a letter dated November 19, 1996, the claimant was notified by primary adjudication that he would be considered fit to return to work following three weeks of physiotherapy treatments. Subsequently, the claimant was paid wage loss benefits up to December 29, 1996, inclusive and final.

In a report dated January 29, 1997, the sports medicine specialist indicated that the claimant had significant deconditioning of his leg/hip which was prolonging his recovery. The specialist suggested a Cybex test to determine the degree of muscular weakness. On February 3, 1997, the claimant appealed to the Review Office and asked the WCB to pay for the costs associated with the Cybex test.

On February 14, 1997, a physiotherapist reported that the claimant still had pain with isometric resisted loading of the right knee as of January 17, 1997. The claimant also displayed patello-femoral/chondromalacia type pain with patellofemoral compression. The physiotherapist stated that the claimant had not achieved complete rehabilitation and required further therapy.

At the request of Review Office, the case was reviewed by a WCB orthopaedic consultant on March 5, 1997. The consultant was of the opinion that there was nothing to indicate on the reports of January 29, 1997, or February 14, 1997, that the claimant was incapable of work activity despite the fact he may require periodic supervised therapy or Cybex testing.

On March 14, 1997, the Review Office determined that the claimant was not entitled to wage loss benefits beyond December 29, 1996 but did accept responsibility for the Cybex testing and a short course of supervised therapy. The Review Office concluded that after review of file documentation the claimant had now recovered from his surgery and was capable of returning to work.

On October 8, 1997, a worker advisor submitted a copy of a medical report dated May 16, 1997, from the sports medicine specialist. The worker advisor requested vocational rehabilitation services for the claimant based on the specialist's comments that the claimant had restrictions from ladder climbing and off ground level work.

In a letter dated February 25, 1998, primary adjudication determined that the claimant was not entitled to vocational rehabilitation services. After consulting with two medical advisors, it was felt that there was no objective medical evidence which would indicate that the claimant required restrictions from his workplace duties. "He did recommend that squatting and climbing be carried out in a careful manner. This in itself, does not mean that these activities cannot be done safely."

On June 5, 1998, the worker advisor presented further documentation from an orthopaedic specialist dated May 21, 1998. In part, the specialist stated, "This man has had two significant traumatic episodes to his knee and radiological evidence would appear to be a fracture through a bipartite patella. This resulted in his surgery which was a resection of a portion of his patella plus a lateral release. This was done for post-traumatic problem and not just for mal-tracking. It was because of this surgery that he was advised to avoid deep squats and kneeling and this was not just common sense advice, but, in fact, permanent work restriction for this gentleman." Based on this report, the worker advisor contended that the claimant was entitled to vocational rehabilitation services with retroactive benefits. In the event that the decision was not in the claimant's favor, the worker advisor requested a Medical Review Panel based on the difference of opinion expressed between the WCB medical advisors and the orthopaedic specialist.

Prior to considering the appeal, the Review Office discussed the case with a WCB orthopaedic consultant. In a memo dated August 14, 1998, the Review Officer documented that the WCB consultant remained of the opinion that the claimant was capable of working without restrictions.

On August 14, 1998, the Review Office determined that the claimant was not entitled to vocational rehabilitation assistance and that a MRP would not be convened. Review Office accepted that the claimant had some residual effects of his compensable knee injuries which could cause him a degree of pain when he kneeled or squatted for long periods. It was also considered that the claimant could minimize his knee complaints by avoiding kneeling, or squatting for extensive periods of time and to alter his position regularly if he were required to kneel or squat for any length of time. Review Office concluded that the claimant did not have restrictions on his activities which were significant enough to necessitate the provision of vocational rehabilitation assistance.

With respect to convening a MRP, the Review Office was of the opinion that there was no basis for doing so as it accepted the medical opinion expressed by the claimant's orthopaedic surgeon.

On December 16, 1998, an Appeal Panel hearing was conducted at the request of the claimant and worker advisor. Following the hearing and discussion of the case, the Panel requested additional information from the treating sports medicine specialist.

In a response dated January 20, 1999, the sports medicine specialist stated that the claimant had done reasonably well with day to day activities but was incapable of performing prolonged kneeling or squatting which were considered permanent restrictions. The specialist did not find any evidence of muscular atrophy as the claimant had been quite compliant with his exercise program.

On January 28, 1999, all parties were provided with the sports medicine specialist's report and were asked to provided comment. On February 9, 1999, the Panel met to render its final decision.

Reasons

Decision No. 1:

That the worker is not entitled to vocational rehabilitation assistance;

The Appeal Panel has reviewed all the medical information on the claimant's file including the most recent report of the sports medicine specialist dated January 20, 1999. The sports medicine specialist is of the opinion that the claimant has been advised to avoid prolonged kneeling or deep squatting indefinitely and that these should be permanent restrictions. In this regard, the Appeal Panel agrees with the claimant's physicians and accepts, as did the WCB Review Office, in its decision dated August 14, 1998, that the claimant does have "some residual effects of his compensable knee injuries which can cause him a degree of pain when he kneels or squats for long periods."

However, the Appeal Panel is also of the opinion that the claimant has not lost employment opportunities as a consequence of his compensable injury and/or surgeries. In fact, the evidence indicates that the claimant has made little, if any, attempt to seek employment since his injury. The evidence also points to the fact that the claimant was capable of working in many occupations as long as he was prepared to minimize the difficulties experienced with his knee by avoiding kneeling or squatting for prolonged periods of time. The claimant did not even attempt to do this in alternate employment activities. As Review Office pointed out in its August 14, 1998, decision, the claimant could have altered his position regularly so as to avoid causing himself pain (just as someone with back problems who sits for extended periods makes a point of standing up and stretching on a regular basis) if he had taken another job that required him to kneel or squat for any length of time.

The granting of vocational rehabilitation services is discretionary. The claimant was in a generic physical job before the compensable accident. He has not lost any form of specialized job as a result of his accident for which he would require retraining to replace. He has been out of the work force for such a long period of time that vocational rehabilitation is unlikely to make a difference to his job search. He could be out searching for the same job now that he could probably have gotten after his accident.

For all of the above reasons, this Panel is, therefore, not prepared to grant the claimant vocational rehabilitation assistance.

Decision No. 2:

That the worker is not entitled to wage loss benefits beyond December 29, 1996; and

This Panel has concluded that the claimant is not entitled to wage loss benefits beyond December 29, 1996, as he was fit to return to his pre-accident occupation at that point in time. Although the medical information on file supports the conclusion that the claimant has restrictions as set out above, it is considered, on a balance of probabilities, that these restrictions were not significant enough to prevent the claimant from seeking and obtaining viable employment.

Decision No. 3:

That a Medical Review Panel should not be convened.

The Appeal Panel is of the opinion that there is no basis for ordering a MRP in this case. We have accepted the medical opinions offered by both the claimant's orthopaedic surgeon and his sports medicine specialist as being an accurate picture of the claimant's ongoing restrictions. There is, therefore, no difference of medical opinion as it relates to entitlement to either vocational rehabilitation assistance or wage loss benefits. We do not consider that there are any real medical issues in contention on the claimant's file.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of March, 1999