The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This case concerns an appeal by a worker for wage loss benefits for the period April 25, 2002 to December 1, 2002. The worker submits that his inability to work during this period is due to his January 3, 2002 injury. The Workers Compensation Board (WCB) did not accept the worker's position that his ongoing complaints were attributable to his January 3, 2002 injury or other workplace injuries and has refused to pay wage loss benefits during the noted period. The worker has appealed the WCB's decision.

An appeal panel hearing was held on July 11, 2006, at the request of a worker advisor acting on behalf of the worker. The panel discussed this appeal following the hearing on July 11, 2006.

Issue

Whether or not the worker is entitled to wage loss benefits commencing April 25, 2002.

Decision

That the worker is entitled to wage loss benefits from April 25, 2002 to May 5, 2002.

Decision: Unanimous

Background

On January 22, 2002, the worker contacted the Claims Information Centre at the WCB to report an injury to both of his knees. He advised that on January 3, 2002, while working as a welder fitter he was kneeling down performing a job when his knees began to fill with fluid. The injury was reported to the employer right away. The worker sought medical treatment from his family physician on January 8, 2002.

The employer also provided a report to the WCB wherein they advised that the worker had been absent from work from October 23, 2001 and returning on January 2, 2002 due to an ankle injury. They further advised that the worker reported that his knees were sore on January 4, 2002 and left work early on January 8, 2002. He returned to work on modified duties working 4 hours per day on January 9, 2002. The employer indicated that there was no actual event or injury to the worker's knees and that he had previous surgery on the right knee in 1999.

The initial medical report from the family physician covering the January 8, 2002 assessment reported that the worker presented with pain and swelling of both knees which was diagnosed as a sprain condition. The physician made reference to a previous WCB claim for a knee condition in 1999. The physician considered the worker fit to perform alternate or modified duties.

On January 22, 2002, a WCB adjudicator spoke with the worker regarding his current knee complaints. During that conversation, the worker confirmed the circumstances of the 1999 claim and stated that his current difficulties commenced a few days after returning to work from a different injury. He stated that after kneeling for a few minutes, he began to experience symptoms in his knees and over the next few days, they began to fill with fluid. Since seeing his physician on January 8, 2002, the worker reported that he has been on and off work. He reported that he would be seeing the orthopaedic surgeon. This was the same surgeon who performed the arthroscopy in 1999.

When assessed on February 13, 2002, the surgeon reviewed the previous history of knee complaints including the 1999 arthroscopic procedure. The surgeon indicated that in addition to the previous meniscal tear, the worker also has degenerative changes in the medial compartment. It was reported that the worker was still having difficulties with the knee and over the past three years, has had a number of short flare ups requiring intermittent time off from work. The surgeon did not think that there was much from a surgical perspective that could be done to help the worker. He concluded by indicating that prior to any further aggressive treatment, the right knee would be investigated by an MRI. Although a copy of the MRI results were not provided to the WCB, the worker's family physician and rheumatologist reported the MRI findings as normal.

The WCB paid the worker partial wage loss benefits up to March 22, 2002. Subsequent to that date, the worker reported that he had returned to work full time. On April 24, 2002, the worker attended the WCB and reported that over the past few days, his knees had become more symptomatic. He reported that he was experiencing pain and swelling in the knees.

The worker was seen by his family physician on April 24, 2002 who reported that on examination, the worker presented with swelling and effusion of the right knee with limitation of flexion. Medications were prescribed and the worker was now considered to be unable to work effective April 24, 2002.

In light of the continuing symptoms being experienced by the worker, the file was reviewed by a WCB medical advisor on May 7 and 14, 2002. The medical advisor noted that the worker has documented osteoarthritic changes affecting the right knee. Given the pre-existing pathology, the fact that there was no specific injury to the knee that occurred in January 2002, the worker's age and body mass index, the medical advisor opined that the symptoms being experienced were not related to the compensable accident. It was felt that the symptoms being experienced were as a result of the worker's pre-existing condition.

On May 29, 2002, the WCB case manager issued correspondence to the worker advising that responsibility for the worker's continuing knee complaints could no longer be accepted. The case manager noted that the worker had pre-existing pathology affecting his right knee and was of the opinion that the work stoppage as of April 24, 2002 was due to this and not the effects of the compensable injury. Accordingly, entitlement to wage loss benefits beyond April 24, 2002 was denied.

There was no further activity on this file until February 14, 2003 when the case manager met with the worker, union representative and employer. According to a memorandum provided by the case manager, the decision of the Review Office in relation to the 1999 claim was explained as was the May 29, 2002 decision with respect to the current claim. The worker contended that his knee problems were in his opinion, related to his employment. He expressed the view that the chondromalacia was as a result of the "crawling around on steel and concrete" which is a requirement for him to perform his welding duties. The worker further indicated that this was supported by the opinion of his rheumatologist and family physician. In addition, he advised that his group insurance carrier was also of the view that his knee condition was work related. The worker requested a new ruling based on the medical opinion provided by the rheumatologist as well as on the results of a functional capacity evaluation (FCE) which had been arranged by the group insurance carrier.

At the worker's request, the case manager undertook to review the previous decision which included obtaining an opinion from a WCB medical advisor with respect to the new medical information that had been provided.

By way of letter dated May 13, 2003, the case manager informed the worker that there would be no change in the previous decision as outlined in the May 29, 2002 correspondence. The case manager advised that the WCB remained of the opinion that the January 2002 accident resulted in a simple strain injury and that the ongoing difficulties being experienced were felt to be due to the pre-existing pathology in the knee.

With the assistance of a worker advisor, the decision to deny further responsibility on this claim was referred to Review Office for reconsideration.

The matter was considered by Review Office and by letter dated December 12, 2003, the worker's request was denied. In considering this appeal, Review Office took note of the assertion that the worker's bilateral knee complaints were attributable to the numerous compensable injuries sustained dating back to 1997. Review Office also took note of a previous Review Office decision that had been rendered with respect to the worker's 1999 claim. In this regard, Review Office recognized the previous ruling found that the worker had recovered from the effects of the 1999 injury and that the ongoing symptomotology was likely due to pre-existing chondromalacia. Review Office stated that in their view, there was no new compelling evidence that would warrant a change in that ruling. Further, as the January 3, 2002 accident was considered by Review Office to be rather insignificant, they were unable to accept the worker's contention that his ongoing knee complaints were due to his work injuries.

In April 2004 and March 2006, the worker advisor again asked Review Office to consider the issue of the worker's entitlements based on further reports from the family physician. In both instances, Review Office determined that the evidence did not warrant a change in the previous decision.

On May 10, 2006, the worker advisor completed an application requesting the Appeal Commission consider the worker's entitlement to wage loss benefits commencing April 25, 2002. On July 11, 2006, an oral hearing was convened into this matter.

Reasons

Worker's Position

The worker attended the hearing with a worker advisor who made a presentation on his behalf. The worker answered questions posed by the panel.

The worker advisor informed the panel that the worker is seeking wage loss benefits for the period April 25, 2002 to December 1, 2002 and noted that the worker returned to work after this period.

The worker's representative submitted that:

"Although there's a consensus of medical opinion that Mr. [the worker] has degenerative changes in his knees, this does not disallow an injured worker for wage loss benefits.

If the accident, which includes a thing that is done and during of which arises out of and in the course of employment, causes an ongoing aggravation and prevents a return to regular duties, wage loss benefits are payable, especially when the accident employer can no longer accommodate an injured worker. This places the worker in a loss of earning capacity."

The position advanced on behalf of the worker was that the loss of earning capacity after April 24, 2002 was due to the January 3, 2002 injury which was an aggravation of the worker's degenerative condition. The worker advisor submitted that in accordance with WCB Policy 44.10.20.10 that the worker was entitled to ongoing wage loss benefits, as the aggravation continued.

The worker advised that after the January 3, 2002 injury he was able to return to work and by March 2002 was working full time in a modified duties position. He experienced a brief time loss from April 24 to May 6, 2002 which he considered to be an aggravation from twisting the wrong way at his modified duties. The worker's family physician supported the worker's time away from April 24 until May 6, 2002. During this period he notes on April 29, 2002 that the worker's knees are swollen and the worker is not capable of modified work. The physician clears him again for full time modified duties as of May 6, 2002 when he completes the health assessment form.

The worker advised that with respect to the condition of his knees in early May 2002, that "They were good enough to enable me back to work. I went to the doctor, he gave me an okay, as long as I did light duties. The swelling was down." He also advised that after April 24, 2002 his knees flared-up occasionally when he was working around his home.

The worker advised that after May 6, 2002 he wanted to return to work but that the employer would not accept him back. He stated that he felt he was able to work provided the work was within his restrictions. He advised that he did not return to work until a grievance was filed on his behalf.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits commencing April 25, 2002. For the worker's appeal to succeed the panel must find that the worker suffered a loss of earning capacity during the period from April 24, 2002 to December 1, 2002 as a result of his January 3, 2002 compensable injury. In other words, the panel must find that this injury prevented the worker from working. The panel found that except for the period April 24, 2002 to May 6, 2002 the worker was able to work at full time modified duties.

The panel notes the evidence that as of March 25, 2002 the worker had resumed full time work in a modified duty job. The panel finds, however, that the worker had a further aggravation on April 24, 2002 and this aggravation caused knee swelling which necessitated the worker to be off work until he was cleared to return to modified full time work on May 6, 2002.

In arriving at this decision, the panel notes that the worker appears to have a condition which is susceptible to development of swelling in his knees. Indeed the worker's injury of January 3, 2002, which occurred on his second day back at work, was described in the worker's report of injury as "I was doing a job where I was kneeling down and then my knees started filling up with fluid." As well the worker's evidence at the hearing was that his knees could swell if he twisted the wrong way. From his evidence this happened on April 24, 2002. This caused him to seek medical attention and visit the WCB to demonstrate his knee swelling.

The panel notes that the worker has a degenerative condition and finds that the January 3, 2002 compensable injury and the April 24, 2002 aggravation related to this condition resolved by May 6, 2002 when the worker was able to work full time at modified duties. The panel accepts the opinion of the WCB medical advisor dated May 14, 2002 that the worker suffered an aggravation which had settled. The panel finds that benefits are not payable beyond May 5, 2002 in accordance WCB policy 44.10.20.10 as the aggravation resolved.

The panel finds that the evidence does not support a finding that worker suffered a loss of earning capacity after May 5, 2002 as a result of his January 3, 2002 injury. The panel finds that the inability to return to full time regular duties in May 2002 is due to the worker's degenerative condition and labour relation issues and not the January 3, 2002 injury. The panel also notes the worker's evidence that he was able to work and could have worked during this period with some restrictions, except for the fact that the employer didn't allow him to work.

The worker's appeal is allowed in part.

Panel Members

A. Scramstad, Presiding Officer
R. Koslowsky, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 6th day of September, 2006