The Appeal CommissionThe Workers Compensation Act of Manitoba

During the period from 1988 to 2004, this 67 year old worker was employed as a construction worker subject to regular seasonal lay offs. The worker has had numerous claims with the Workers Compensation Board (“WCB”). In this appeal the panel has considered two claims; the first relating to a 1995 right knee injury and its re-injury in 2004, and the second relating to a left foot injury that occurred in 1988. The background and analysis for our decisions in these two claims are set out below.

1995 Claim Relating to the Worker’s Right Knee

Wage Loss Benefits during the Period from 1996 to 2004

On October 16, 1995 the worker slipped on a sand screen while at work twisting his right knee. He had pain on the medial aspect of his right knee and near the kneecap and swelling. He continued to work until November 6, 1995 when he was laid off due to lack of work. He was examined by an orthopedic specialist in January 1996 who noted that there was no wasting in the right leg, no effusion in the right knee, and no significant patella femoral pathology and no crepitation. Ligaments were stable but the worker did have some tenderness at the midpoint of his medial joint line and pain with valgus strain. Right knee arthroscopy was recommended to rule out a right medial meniscus tear.

The worker underwent right knee arthroscopic surgery on February 12, 1996. He was found to have Grade II chondromalacia change to the central and medial aspects of the patella. The medial meniscus was intact; the ACL was normal, but there was some early degenerative tearing of the central part of the free edge of the lateral meniscus. As this was asymptomatic, it was left intact.

The worker was examined on May 28, 1996 by his orthopedic surgeon. In a report dated June 5, 1996 the surgeon noted that clinically there was no significant residual impairment in the worker’s right knee and the worker was advised to return to work. The surgeon was of the opinion that the worker recovered from his arthroscopic evaluation in a three to four week period and therefore concluded that the worker was considered disabled for approximately three weeks after the February 12 surgery.

In a decision dated April 11, 1997 the Review Office noted that the chondromalacia change was a pre-existing condition temporarily aggravated by the October 1995 slip, but not caused by that accident. The worker received wage loss benefits from November 6, 1995, when he stopped working until his recovery from arthroscopic surgery on March 4, 1996. The Review Office denied wage loss benefits beyond March 4, 1996 on the basis that the surgical report indicated that the worker had not sustained any knee damage and any ongoing difficulties with his knee were a result of the pre-existing condition, which was unrelated to his employment injury. The worker did not appeal this decision. The worker returned to work.

On August 14, 2004, the worker reported injuring his right knee when he stumbled on rocks while at work causing pain and swelling. The injury was accepted by the WCB; the worker continued working and was laid off sometime in October 2004.

The worker was examined by his orthopedic surgeon on November 16, 2004. The surgeon noted that the worker had a previous problem with his right knee in 1995 at which time arthroscopic surgery was performed, following which the worker did reasonably well. In his medical report dated November 16, 2004 the surgeon notes the following:

“Right knee is thickened, there is a mild effusion present. He is very tender along the medial jointline especially going to posteriorily. There is some discomfort with medial McMurray testing, there is a point of tenderness laterally on the lateral jointline that is tender. There is mild patellofemoral crepitus, cruciates intact, ligaments are intact, range of motion is reasonable but there pain at the extremes, neurovascular status is otherwise normal. Submitted x-ray from Beausejour shows some early lateral jointspace (sic) narrowing without reactive spurs, medial side is well maintained.”

The orthopedic surgeon recommended right knee arthroscopic surgery to rule out a tear of the right medial meniscus. Arthroscopic surgery was performed on December 20, 2004. Findings revealed a degenerative tear of the posterior horn of the right medial meniscus and a mid substance tear of the right lateral meniscus. Partial right medial and lateral meniscectomies were performed.

The WCB medical advisor was of the opinion that the right knee arthroscopic findings were primarily related to the worker’s 1995 injury. The medical advisor was of the view that the recent work related injury in August 2004 enhanced the pre-existing effects of the worker’s 1995 injury. The WCB accepted the worker’s claim as a recurrence of his 1995 injury.

The WCB case manager contacted the worker’s employer and determined that the worker’s last day of work was October 14, 2004, when he and his crew were laid off for the season. As the worker had been capable of performing his regular duties at the time of lay-off, wage loss benefits were provided from the date of surgery of December 20, 2004.

Permanent restrictions were put in place that prevented the worker from returning to employment as a construction worker, and wage loss benefits were provided from December 20, 2004 until March 30, 2006, when the worker turned 65 years of age. Pursuant to Section 39(2) of The Workers Compensation Act (the “Act”) wage loss benefits are payable until the worker attains the age of 65 years.

In its decision dated May 7, 2007, the Review Office denied the worker’s request for additional wage loss benefits prior to December 20, 2004. The Review Office noted that the worker’s orthopedic surgeon had stated that the worker was disabled for three weeks following his February 12, 1996 arthroscopic surgery and that there was a total absence of medical documentation on the condition of the worker’s right knee from 1996 to 2004.

At the hearing of the appeal, the worker explained that he was working as a construction worker in 2004 when he was laid off due to wet weather in October of that year. The worker testified that he did not miss any work due to his right knee problem prior to his lay off in October 2004. He also testified that he did not contact his physician until sometime after the lay off and that the lay off due to wet weather had not ended at the time he saw his physician on November 16, 2004. The worker did not know when the layoff ended and he testified that when contacted by his employer sometime in November, he advised the employer that he was having significant problems with his knee.

The panel notes that when the worker was examined on November 16, 2004, the orthopedic surgeon noted a significant disability in the worker’s right knee and recommended arthroscopic surgery.

Given the worker’s evidence that he continued to work as a construction worker subject to regular seasonal layoffs prior to his lay off in October 2004; that this layoff due to weather continued at least until his medical appointment on November 16, 2004; that the worker’s surgeon indicated that the worker recovered from the initial arthroscopic surgery of his right knee by March 4, 1996 following which, he did reasonably well; and the absence of medical evidence regarding the condition of the worker’s right knee during the period from March 4, 1996 to November 16, 2004, the panel has concluded that the worker did not suffer a loss of earning capacity during this period. The panel finds that the worker is not entitled to any additional wage loss benefits for the period commencing March 4, 1996 to November 16, 2004.

However, the panel is of the opinion that once the worker was diagnosed with a significant problem in his right knee on November 16, 2004, and his employer was advised of that knee problem, it is unlikely that the worker would have been able or would have been called to return to his previous employment. The panel therefore concludes that the worker suffered a loss of earning capacity from the date in November his physician examined him. The panel holds that the worker is entitled to receive additional wage loss benefits for his right knee condition for the period commencing November 16, 2004 until December 20, 2004.

Permanent Partial Impairment Award for Right Knee

On March 28, 2006 a WCB impairment awards medical advisor determined that the worker’s right knee had reached its maximum level of medical improvement and the worker was ready to be assessed to determine his entitlement for a permanent physical impairment award. The medical advisor assessed the worker’s loss of range of motion and rated the worker’s impairment at 11.6%. This rating included a 10% impairment rating for loss of motion in the right knee as well as a 1.6% enhancement rating to reflect the cumulative functional effect on the worker’s right knee of loss of range of motion in his left knee. The medical advisor also determined that any pre-existing condition in the worker’s right knee contributing to loss of motion was minor and no reduction was made in respect of the pre-existing condition.

The WCB case manager initially advised the worker by letter dated June 19, 2006 that he was entitled to an impairment award based on an impairment rating of 10%. The error was corrected and by letter dated July 27, 2006 the worker received the balance of his impairment award based on the correct impairment rating of 11.6%.

In its decision dated May 7, 2007, the Review Office noted that no additional information was provided by the worker to support any change to the permanent partial impairment rating.

In considering the issue of whether the worker’s impairment award was rated and assessed correctly, the panel is bound by the Act, its regulations and the policies adopted by the WCB board of directors.

Subsection 60(2) of the Act provides that the WCB has exclusive jurisdiction to determine the existence and degree of an impairment from a workplace injury. Sections 4(9) and 38 of the Act deal with impairment awards and provide that the award is calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. The award is not related to loss of earning capacity and it is not a substitute for loss of earning capacity. It is also important to note that “impairment” is defined in the Act as “a permanent physical or functional abnormality or loss, including disfigurement that results from an accident” and therefore, pain is not a measurable component in the determination of an impairment award.

Subsection 38(2) of the Act provides a scale for calculating the monetary value of lump sum awards based on the degree of impairment. This scale is adjusted annually and is published in the regulations. In order to determine a worker’s degree of impairment, the WCB relies on the permanent impairment rating schedule (the “Schedule”) set out in WCB Policy 44.90.10.02.

The Schedule is designed to measure the degree of permanent physical impairment of body function and in the case of lower extremities such as the knee, measures the loss of movement in the knee, based on clinical findings, as a percentage of the assigned ratings for complete joint immobility. In accordance with the formula provided in the Schedule for calculating the percentage impairment rating, the worker was determined to have a 10% impairment rating in his right knee and a 1.6% enhancement rating taking into account restricted mobility in his left knee, for a total permanent impairment rating of 11.6%.

Subsection 38(2) of the Act provides that a worker is entitled to $1060 (being the adjusted amount in effect on the day of the accident) for an impairment of 10% or greater plus a further $1060 for each full 1% of impairment in excess of 10%. Subsection 38(3) provides that the impairment award of $2120 is then reduced by 2% for every year of age the worker is over 45 years at the time the board determines that the worker has an impairment. The WCB policy provides that evaluation of permanent impairment is made when treatment has been completed, or when, in the opinion of the WCB’s physicians, the medical condition has stabilized and no further improvement is expected, which in the case at hand, occurred on March 28, 2006.

The worker was 54 years of age on March 28, 2006 and therefore the worker’s award was reduced by 18%. The worker was awarded a lump sum of $1738.40 in accordance with the above calculations.

The panel notes that the medical examiner measured the range of motion in the worker’s right and left knees. There was no evidence presented to indicate that the worker’s range of motion was different from the clinical findings upon which the medical advisor’s 11.6% impairment rating was based. The panel notes that at the hearing of the appeal, the worker did not indicate that there was any significant change in the range of motion in his right knee.

The panel therefore finds that the examination and assessment conducted by the medical advisor was in accordance with the Schedule and the impairment rating of 11.6% was correctly assessed. The panel also finds that the permanent impairment award, which took into account a reduction for age, was correctly calculated in accordance with Section 38 of the Act. Accordingly, the panel concludes that the permanent partial impairment award is correct and dismisses the worker’s appeal of this issue.

1988 Claim Relating to the Worker’s Left Foot Injury

Disability between 1988 and 2006

This claim relates to an injury that occurred on July 12, 1988, when the worker slipped and fell off a rock grizzly injuring his lower back and left leg. The worker continued working with the same employer until July 25, 1988 when his employment terminated due to a shortage of work. The worker first sought treatment for this injury on October 17, 1988. He was diagnosed with a contusion of his left foot, no treatment was recommended and he was cleared to return to work. The worker was next seen on November 30, 1988 for chronic back and leg pain. The physician noted in his report following examination that no specific injury was identified and that the worker was able to return to work.

The worker commenced employment with another employer on April 4, 1989 continuing until September 21, 1989 when his employment again ended due to a shortage of work. The worker was seen by his physician on September 19, 1989 and September 21, 1989 for complaints of chronic back pain.

In its December 1, 1989 decision the Review Committee denied the worker’s claim for wage loss benefits from August 1, 1988 to April 4, 1989 and from September 21, 1989. The Review Committee noted that the worker’s periods off work coincided with lay-offs due to work shortage; there were no objective medical findings that the worker’s inability to work during those periods was related to the July 12, 1988 injury; and the worker had indicated that when he was called back to work in July 1988, he informed his employer that he could not return to work as he required time off to do his harvest. The Review Committee noted that it was well documented that the worker had a pre-existing degenerative back condition prior to 1980 and his recurring back problems were most probably due to the progression of this degenerative process and not to a work related injury.

This decision was upheld earlier by the Appeal Commission. In its decision dated January 26, 1990, the Appeal Commission assessed the worker’s entitlement to wage loss benefits based on his claim that his inability to return to work was due to back pain. The Commission held that the worker’s current back problems were related to his pre-existing degenerative back condition and not to either his 1980 injury or the July 12, 1988 injury. The Commission noted that the worker did not seek treatment for his July 12, 1988 injury until October 17, 1988, and at that time he was only seen for a left foot contusion, with no mention of back problems, no treatment was prescribed and the worker was not considered disabled from working. The Commission also stated as follows in its decision:

“The Appeal Panel note that the claimant’s treating physician had stated that he was surprised that the claimant had remained off work as the claimant had been seen several times subsequent to October, 1988 for unrelated problems. In further correspondence from the treating physician he stated that the claimant was capable of continuing his present course of employment pattern that he had established. The claimant was stated as being a multi-talented gentleman who engaged in activities ranging from operating a gravel crusher, to a front-end loader, to a bulldozer, cutting pulp to farming. The physician also stated that even when the claimant had been receiving compensation benefits in the past, he continued to engage in work at his home with his machinery or in the bush. The physician also stated that he did not find the claimant’s back any worse than on previous occasions.”

The Commission concluded as follows:

“The medical documentation does not substantiate that the claimant is disabled from work due to an injury. The claimant’s contention that his problem is related to his previous claim in 1980 is unsupported by medical documentation. The claimant’s problems have been described by his treating physician as purely subjective, with no new objective finds. The claimant has a degenerative condition of his spine which is considered unrelated to either of his claims.”

Sometime in 1994, x-rays of the worker’s left foot taken on October 17, 1988 and June 3, 1992 were provided to the WCB. The x-ray taken on October 17, 1988 revealed an un-united fracture of the 2nd metatarsal shaft in the left foot. The June 3, 1992 x-ray revealed that this fracture remained un-united. There was also a solidly united fracture of the 3rd metatarsal shaft and degenerative changes at the great toe metatarsal joint.

The worker requested reconsideration of the Appeal Commission decision in light of the new medical evidence. The Appeal Commissioner denied the request for reconsideration on the basis that the x-rays did not constitute evidence that was substantial or material to the Appeal Commission’s decision.

In March 1999, the worker made a claim indicating that on July 30, 1998, his feet became sore after he slipped while at work. A March 15, 1999 medical report indicated that the worker continued working. The injury was diagnosed as a sprain. The WCB accepted the claim as a no-time-loss injury.

Medical reports pre-dating the 1998 accident were provided that indicated that the worker had sought treatment for pain in his right foot and left ankle. X-rays of the worker’s left foot were reviewed showing the old non-union fracture of the metatarsal bone; well healed fracture of the 3rd metatarsal bone and osteoarthritic changes. There was also an x-ray of the worker’s right foot that showed a healed 2nd metatarsal bone fracture and mild degenerative changes.

In July 1999, the worker was assessed by a WCB medical advisor who concluded that the worker had longstanding osteoarthritis of the left foot and noted the x-ray evidence of a fracture dislocation in the left foot. The WCB advisor was of the opinion that there was no causal relationship regarding these findings and the July 30, 1998 accident.

The WCB case manager concluded in his letter dated July 27, 1999 that the worker had recovered from the effects of the 1998 bilateral foot strain and his current difficulties related to longstanding osteoarthritis of his feet which predated the 1998 injury. The WCB denied responsibility for orthotics or footwear.

The worker continued to see physicians and orthopedic specialists for complaints of pain in his feet and in November 2005 the worker appealed the WCB decision relating to his 1998 injury claiming that the WCB should have ongoing responsibility for his feet problems.

In its decision dated December 1, 2005, the Review Office denied the worker’s claim on the basis that the worker’s foot problems since 1999, have mainly arisen through the non-union of the fractures and the severe osteoarthritis that developed through the trauma to the foot that produced the fractures. Since these fractures clearly predated the worker’s injury on July 30, 1998, his bilateral foot condition is not related to that workplace injury.

In its decision relating to the 1998 injury, the Review Office noted that there was no WCB adjudication decision on whether the fractures were related to the earlier July 12, 1988 left foot injury and noted that the Appeal Commission in 1990 did not have the medical evidence of multiple fractures in that foot when it dealt with the worker’s 1988 claim and denied wage loss benefits.

The file was referred to the WCB medical advisor on December 28, 2005 for an opinion regarding the relationship of the worker’s left foot problems and the July 12, 1988 injury. The WCB medical advisor concluded that the October 17, 1988 x-ray reporting an un-united fracture at the proximal end of the 2nd metatarsal would indicate a direct cause effect relationship with the compensable injury and it was reasonable that he should now require orthotics.

The WCB accepted responsibility for the worker’s orthotics and on September 22, 2006 referred the file to medical services for consideration of whether the injury resulted in a permanent partial disability.

The WCB medical advisor reviewed the file evidence and noted that neither a contusion nor fracture of a metatarsal would affect mobility of the ankle or motion of the foot in the plane of pronation/supination and inversion/eversion and therefore the worker has no rateable disability.

The WCB case manager also reviewed the file to determine if the worker was entitled to wage loss benefits from August 1, 1988 to April 1989 and after September 21, 1989 in light of the fact that the July 1988 injury likely resulted in a fracture rather than merely a contusion. The case manager denied wage loss benefits on the basis that any time away from work was not related to left foot problems. The case manager noted that the worker’s time away from work coincided with seasonal layoffs or working on his farm and the worker had related his ongoing time loss to back rather than feet problems.

The Review Office also denied the worker’s claim for additional wage loss benefits due to his 1988 left foot injury. In its decision dated May 7, 2007, the Review Office noted that although the 1988 accident resulted in a fracture, there was no medical evidence to establish that the worker was disabled between 1988 and 2006 due to the effects of this injury and there is no rateable impairment for this injury.

The panel has carefully reviewed all of the evidence on file and considered the worker’s testimony at the appeal hearing. The panel has concluded on a balance of probabilities that the worker was not disabled due to his left foot injury from 1988 until 2006 and is therefore not entitled to any wage loss benefits for his left foot injury. The panel has reached this conclusion for the following reasons:

• The worker continued working until he was laid off due to work shortage on or about August 1, 1988;
• The worker did not seek treatment for left foot problems until October 16, 1988 and the physician indicated at that time that he was able to return to work. The worker was next seen by his physician on November 30, 1988, complaining of back and leg pain, not foot pain. The physician notes ongoing regular examinations during this time for chronic back pain not foot problems. When seen on September 19 and 21, 1989 the physician noted only back complaints;
• The transcript of the evidence provided by the worker at his January 15, 1990 appeal hearing indicates that the worker attributed his inability to return to work as being due only to his back problem. When the worker described the injury on July 12, 1988 when he slipped off a machine, he referred only to his having jarred his back badly and to his ongoing treatment for back problems as the reason he was unable to work. Although the worker was asked about the treatment he sought following the injury and the reasons he felt he was unable to work, the worker made no mention of any left foot difficulties;
• Reports relating to the worker’s feet problems from the worker’s physicians in 1998, 1999 and 2001 continue to indicate that the worker remained active and was still working;
• The worker testified before the panel on October 2, 2007. He was asked if he could identify any times he missed work from 1988 on as a result of his left foot. The worker was unable to identify any specific periods. He testified that his foot condition was worse shortly after it was injured in 1988 and that from 1990 on he did not recall missing any work due to his left foot; and
• Although there is a medical report dated October 7, 2003 on file indicating that the worker advised his physician that his feet were becoming worse and that he was not working, the worker testified that he did work during periods in 2003 and 2004 until he was laid off on October 4, 2004. The worker referred to missing work during this time as a result of the injury to his knee. The worker never returned to work after October 4, 2004 and as indicated above he has or will receive benefits for his right knee problems from November 16, 2004 until he turned 65 years of age on March 30, 2006.

The panel is of the opinion that the weight of the medical evidence, the testimony of the worker and the evidence on file does not support a finding that the worker’s left foot problem prevented him from working during the period from 1988 until 2006 and that his seasonal work cycle was not adversely affected by his left foot condition. Pursuant to Subsection 4(1) of the Act in effect at the time of the 1988 accident, the panel concludes that the worker was not disabled from the left foot injury during any period after the day of that accident and therefore no compensation is payable.

Permanent Partial Disability Award for Left Foot

As a result of the medical evidence indicating that the worker’s severe osteoarthritis in his left foot was associated with the fractures to his foot from the compensable injury that occurred in 1988, the panel referred the worker for examination by a WCB impairment awards medical advisor.

The WCB impairment awards medical advisor examined the worker on November 21, 2007 and recommended a cosmetic/deformity impairment of 1% associated with the cosmetic consequences of healing of the fractures related to the 1988 injury.

The panel notes that there is no loss of mobility in the left foot associated with the 1988 compensable injury as fractures of the metatarsal do not affect mobility in the ankle or foot as was previously noted by the WCB medical advisor.

The panel has therefore concluded that the worker is entitled to a permanent partial disability award based on a 1% cosmetic deformity rating in accordance with Subsection 40(3) of the