Decision #05/99 - Type: Workers Compensation
An Appeal Panel review was held on November 24, 1998, following receipt of an appeal from an employer representative.
Whether responsibility should be accepted for wage loss benefits from February 13, 1998, to March 4, 1998, inclusive; and
Whether responsibility should be accepted for physiotherapy treatment related the knee injury and for the prescribed medications beyond January 30, 1998.
That responsibility should be accepted for wage loss benefits from February 13, 1998 to March 4, 1998 inclusive; and
That responsibility should be accepted for physiotherapy treatment related to the knee injury and for the prescribed medications beyond January 30, 1998.
The claimant slipped and fell on ice while employed as a superintendent of a power plant on January 27, 1998. In his application for compensation dated February 3, 1998, the claimant stated that following the incident he felt no immediate pain or injury, however several hours later he noticed pain and swelling in his right knee. The claimant indicated that he was going to see his doctor regarding other matters on January 30, 1998, when he asked the physician to check his knee. Subsequent medical information revealed the following:
- In a letter, dated April 28, 1998, the attending physician noted that on January 30, 1998, the claimant complained of some knee strain, and was having pain with walking, pain with weight bearing and pain with straining medial or laterally. Examination was generally benign except for some mild inflammation and tenderness around the joint space. Range of motion was considered normal and there was no suggestion of ligament tear. When seen again on February 9, 1998, the physician stated that the claimant's knee had not improved. The physician considered the claimant unable to perform his pre-accident duties until February 23, 1998.
- On February 12, 1998, x-rays showed no bone, joint or soft tissue abnormality in either knee. The right foot x-rays noted severe degenerative narrowing at the 1st metatarsal phalangeal joint. No other significant bone, joint or soft tissue abnormality was identified.
- A Doctor's First Report, dated February 16, 1998, diagnosed the claimant with a soft tissue knee strain following an examination on February 13, 1998. Subsequent progress reports dated February 23, 1998, reported mild swelling and ligaments intact. On March 23, 1998, the physician reported normal range of motion, minimal pain and no swelling.
- On May 19, 1998, a WCB medical advisor reviewed the case at the request of Claims Services. The medical advisor commented that the February 13, 1998, or the February 23, 1998, examination did not suggest enough medical evidence to merit time loss. The correspondence, dated April 28, referred to the claimant "not doing well". It was not clear on what this was based. The medical advisor concluded that there was no cause and effect relationship between the compensable injury and the recurrence in February 1998 and that there was insufficient evidence to grant time loss.
On June 4, 1998, Claims Services wrote to the claimant advising that the medical information on file did not support his inability to continue performing his pre-accident duties and therefore wage loss incurred effective February 13, 1998, would not be the responsibility of the WCB. Claims Services further advised the claimant that it was unable to establish a cause-effect relationship between the initial injury and recurrence of symptoms. Therefore, responsibility for costs associated with physiotherapy or medications after January 30, 1998 would not be accepted.
On July 10, 1998, the claimant appealed the June 4, 1998, decision to the Review Office. On August 25, 1998, a submission was received from the employer's representative opposing the recision or amendment of primary adjudication's decision dated June 4, 1998.
In a decision, dated September 11, 1998, the Review Office determined that responsibility should be accepted for wage loss benefits from February 13, 1998, to March 4, 1998, inclusive. The Review Office also accepted responsibility for physiotherapy treatment and medications related to the knee beyond January 30, 1998.
The Review Office stated that there was no question the claimant had injured his right knee after a fall at work on January 27, 1998 and that the employer did not dispute this fact. The actual issue under contention involved the claimant's fitness for employment on an ongoing basis following the accident. The Review Office considered the attending physician's instructions seemed quite clear in that he advised the worker to refrain from all activities and not to weight bear, despite the fact the only recorded objective finding was mild swelling. The Review Office indicated that it was apparent the worker continued to work as long as he was able and that the anti-inflammatories were not assisting his recovery.
The Review Office was of the opinion that the claimant was not entitled to payment of benefits beyond the date of the non-compensable right foot surgery (March 5, 1998), as there was no evidence to suggest the compensable injury would have continued to keep the claimant disabled past March 4, 1998.
Subsequent file documentation showed that the employer's representative appealed the Review Office's decision and requested a non-oral file review. The Appeal Panel took into consideration a submission from the employer dated November 10, 1998, and a submission from the claimant dated November 17, 1998. A non-oral file review was held on November 24, 1998.
We have no hesitation in agreeing with Review Office that the WCB should accept responsibility for payment of the claimant's wage loss benefits from February 13, 1998, to March 4, 1998, inclusive. There is no dispute that the claimant sustained a right knee injury after a fall at work on January 27, 1998. File information reveals that the claimant continued to perform his work duties for as long as he was able. It soon became apparent that the anti-inflammatories prescribed by the treating physician were not assisting in the claimant's recovery as his symptoms continued. The treating physician advised the claimant to refrain from all activities and not to bear weight on his right knee for three to four weeks. On March 5, 1998, the claimant underwent right foot surgery for a non-compensable problem. The file further indicates that the claimant retired from active employment with the accident employer on or about May 9, 1998.
The weight of evidence does not support the claimant's contention that the effects of his compensable injury continued to disable him from performing his employment duties beyond March 4, 1998. It would appear that it was the right foot surgery and subsequent recovery period which prevented the claimant from resuming his employment prior to retirement and not the compensable injury.
We further agree that responsibility should be accepted for physiotherapy treatments resulting from the right knee injury together with the prescribed medications beyond January 30, 1998. We note the employer's comments that it does not take issue with this point as long as "costs are limited to the knee condition and within reason."
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 6th day of January, 1999