Decision #134/08 - Type: Workers Compensation
Preamble
The worker has an accepted claim with the Workers Compensation Board (“WCB”) for a left knee injury that occurred at work on October 10, 2007. The issue being appealed by the employer’s advocate relates to a decision made by Review Office to award the worker wage loss benefits for a period of time in October 2007 up until he resumed full time duties. A hearing was held on September 23, 2008 to consider the matter.Issue
Whether or not the worker was entitled to full wage loss benefits for October 11 and 12, 2007 and to partial wage loss benefits from October 16, 2007 until he resumed full time work duties.Decision
That the worker is entitled to full wage loss benefits for October 11 and 12, 2007 and to partial wage loss benefits from October 16, 2007 until he resumed full time work duties.Decision: Unanimous
Background
The worker filed a claim with the WCB for an injury that occurred at work on October 10, 2007. The worker reported that he missed a step while descending a ladder and that he fell 3 to 4 feet to the ground. He said he landed awkwardly on his left foot and felt a sharp shooting pain in his left knee.
File records indicate that the worker sought medical attention at a hospital emergency facility on October 10, 2007. It was reported that the worker had mild swelling and decreased range of motion. The worker was unable to weight bear secondary to pain in the anterior knee. The worker was prescribed narcotic and pain medication and was told to follow up with an orthopaedic surgeon the following day.
On October 14, 2007, an orthopaedic surgeon reported that the worker was seen on October 12, 2007 in follow up for his left ACL reconstruction (a non-compensable injury). He noted that the worker had fallen off a piece of equipment two days before and that he sustained injuries to his left knee, left shoulder and left chest wall. Upon examination of the worker’s knee, the specialist noted no significant swelling. There was some diffuse tenderness about the proximal tibia and no specific joint line or ligamentous tenderness. Range of motion was from full extension to approximately 90 degrees of flexion where it was limited by pain. There was slight laxity of the ACL and the collaterals appeared stable. X-rays revealed no evidence of a fracture. The worker was advised that he could weight-bear as tolerated and should attempt to do range of motion of the knee. He said the worker was going to remain off work for the next two weeks or so.
The worker went back to work on October 15, 2007 and performed light duties but his knee was very painful from sitting. He could not stay more than four hours that day and remained off work for the rest of the month.
The worker was seen by a sports medicine specialist on October 16, 2007. The diagnosis rendered in relation to the October 10 work accident was a contusion, sprain and questionable occult fracture. The treatment plan outlined was “therapy, home exercises, light duties for ½ day…”.
The accident employer provided the WCB with details of a meeting that took place with the worker on October 17, 2007. The employer noted that the worker gave them a return to work form stating that he was not able to sit, stand and walk on his leg. The worker indicated that he may have a fracture and that his doctor told him to stay home and elevate his leg and ice it. The employer offered the worker light duties which would allow him to elevate, ice and stretch his leg but the worker refused. His reasoning for not taking the modified duty position was as follows: His doctor told him he should be home resting it; his doctor did not want him to work until he had a CT scan; he was on heavy medication; his doctor told him that he could do more damage to his knee by being at work.
The worker was treated by a physiotherapist on October 18, 2007 who questioned whether the worker sustained an ACL sprain or a meniscal injury.
Subsequent file records contain a number of memorandums which document discussions that took place between WCB adjudication staff and the worker concerning the issue of modified duties and the worker’s refusal to perform the modified duties.
When seen for examination by the orthopaedic surgeon on October 30, 2007, it was reported that the worker’s pain and range of motion significantly improved over the last couple of days and that prior to this he was having difficulty sitting in a chair due to lack of flexion of the knee. The surgeon felt that the worker should now be able to return to work with a graduated return to work program at modified duties. He recommended that the worker start at four hours per week beginning November 5, 2007. He should be able to increase this to 6 hours per day the following week and full time hours the week thereafter.
In a progress report dated October 31, 2007, the sports medicine specialist noted that the worker had “Medical impairment last week related to Percocet and other meds like tramacet – could not concentrate”. Following the examination, the specialist diagnosed the worker with a probable meniscus tear, wanted to await a CT to rule out a fracture, was considering ordering an MRI and believed that the worker could perform light duties part-time.
On October 31, 2007, the WCB case manager authorized payment for a half day time loss on October 15 and half days from October 16, 2007 to October 30, 2007.
On November 5, 2007, the worker commenced a graduated return to work at four hours per day at modified duties.
In a report dated November 8, 2007, the treating physiotherapist recommended that the worker remain at four hours per day and not increase to six hours per day until he was reassessed by the treating surgeon.
During a telephone conversation on November 13, 2007, the worker advised his case manager that his knee was sore by the third hour at work and was swelling so he iced it at home. He was to see the surgeon on November 21, 2007.
In a WCB decision dated November 14, 2007, the worker was advised that his claim for a left knee injury at work on October 10, 2007 had been accepted, however the WCB was unable to issue full wage loss benefits. The worker was advised that he was not entitled to wage loss benefits for October 11 and 12, 2007 as he was deemed fit for full time modified duties which he chose not to perform. The worker attempted to return to work on October 15 but was unable to complete his shift due to his injury. Therefore, wage loss benefits for the time missed would be paid for that day. As the worker was deemed fit for ½ days as of October 16, wage loss benefits would only be paid for the time he would have missed from work had he worked the recommended half days effective October 16, 2007.
On November 15, 2007, the orthopaedic surgeon advised the sports medicine specialist that he was arranging for the worker to undergo an MRI to rule out any intra-articular derangement.
In a report dated November 19, 2007, the treating physiotherapist indicated that since his return to work, the worker had worsening objective signs. Based on her most recent assessment findings, she recommended that the worker should remain at work with the following restrictions:
· Four hour shifts;
· No more than 2-3 hours of weight bearing per shift;
· The ability to elevate the knee when sitting;
· To avoid crouching, kneeling, climbing stairs or continuous walking;
· No lifting more than 10 lbs.
· The restrictions were to be in place until the worker’s next appointment with the surgeon.
In a further WCB decision dated November 19, 2007, the worker was advised that based on a review of the current file information, the evidence did not support that he was capable of only a four hour return to work program. Due to the nature of his injury, it was considered that he was capable of a full time modified or alternate return to work program. Due to a knee injury he may require four hours sedentary type duties in addition to the four hours modified duties he was currently working. The employer advised that they would accommodate additional restrictions for the balance of his work day. In addition to his current modified duties, the case manager suggested that the worker may need sedentary type duties for the balance of his full work day in order to be accommodated full time. The worker was advised that partial wage loss benefits to November 19, 2007 will be assessed dependent on additional information received. Effective November 20, 2007 the worker would be considered capable of a return to full time modified duties or an alternate duty return to work program. Should he choose to continue working four hours, he would not be paid wage loss benefits for the partial hours not worked.
After speaking with the treating physiotherapist on November 22, 2007, the WCB case manager authorized partial wage loss benefits based on the worker working four hours per day from November 13 to November 19, 2007 and effective November 20, 2007, the worker should be working eight hours at modified duties.
A report was received from the treating surgeon dated November 22, 2007. He stated that he previously placed the worker on modified duties with a graduated return to work program following his work related injury. The worker, however, was unable to progress past four hours per day. By the end of the four hours, his pain significantly increased to the point where he was limping and having difficulty walking. After he examined the worker’s knee, he placed him on sedentary duties pending the results of his MRI. The surgeon indicated that he suggested to the worker that he remain at four hours per day until his next assessment.
An MRI of the left knee dated November 26, 2007 revealed post-surgical changes related to ACL reconstruction, truncation of the lateral meniscus, presumed post-surgical. It also showed evidence of a moderate sized remnant without evidence for residual or recurrent tear.
On December 3, 2007, the orthopaedic surgeon noted that the worker’s knee pain was improving and he was not limping after his four hour shift. Following a review of the MRI results, the surgeon recommended that the worker progress to six hours per day of normal duties followed by two hours per day of modified duties. This was to continue for two weeks at which time it was felt that the worker may return to full hours and normal duties.
On January 10, 2008, the worker appealed primary adjudication’s decisions of November 14 and 19, 2007 to Review Office. He indicated that he was unable to return to modified duties due to the medication he was prescribed and that his doctor told him not to return to work until further notice.
In a submission to Review Office dated February 28, 2008, the employer’s advocate outlined its position that the medical evidence on file failed to support the worker’s contention that he was medically unable to work on October 11 and 12, 2007 and then able to only work part days until December 18, 2007. The advocate’s submission was referred to the worker and on March 27, 2008, a union representative presented argument to Review Office on the worker’s behalf.
On April 17, 2008, Review Office determined that the worker was entitled to wage loss benefits for October 11 and October 12, 2007 and partial wage loss benefits from October 16, 2007 until the worker resumed full time work duties. Review Office indicated that it placed weight on the orthopaedic surgeon’s recommendations for the worker to remain off work. The orthopaedic surgeon was familiar with the worker’s recent history of surgery to the same leg and had concerns that the work accident may have caused further injury. It felt that it was reasonable for the worker to have followed the surgeon’s instructions by remaining off work and waiting for the diagnostic test results. Once the results were known, the surgeon recommended that the worker return to part time hours which the worker did, which resulted in an exacerbation of his knee injury. The worker then followed the instructions of his physiotherapist and surgeon by not increasing his hours until it was safe to do so.
In response to the decision rendered by Review Office, the case manager authorized that the following benefits be paid to the worker:
· October 11 and 12, 2007 – full wage loss benefits;
· October 15, 2007 – partial wage loss based on 3.75 hours worked;
· October 16 – November 2, 2007 full wage loss benefits;
· November 5 – December 3, 2007 – partial wage loss benefits for the four hours not worked on these days based on four hour shifts (with the exception of November 12 as the employer paid full eight hour stat.)
On May 13, 2008, the employer’s advocate appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.
Reasons
Employer’s submission:
The employer was represented at the hearing by an advocate and its corporate safety manager. There were three periods of time which were addressed by the employer in this appeal. The first was October 11 and 12, 2007. The employer submitted that the worker was capable of full time modified duties during those two days. The second period was October 16 to November 2, 2007. It was submitted that the worker was capable of working modified duties for four hour shifts during this time. The third period was November 20 to December 4, 2007. It was submitted that the worker was capable of full time modified duties during this time. It was acknowledged that from November 5 to November 19, 2007, the worker was properly determined to be capable of working four hour shifts of modified duties.
The position of the employer was that the judgment of the WCB case manager should be preferred to that of the worker’s attending physicians. The employer argued that the case manager had all of the information regarding the worker’s medical condition and the availability of alternate work and was therefore in a better position to be able to assess any loss of earning capacity. The employer in this case had an extensive return to work program which could have accommodated the worker in any way required. The employer met and exceeded its obligation to make suitable accommodation available. The worker chose not to work more than half days, and it was submitted that the worker should also have been obligated to participate in modified duties to the full extent of his abilities. As the worker did not meet this obligation, wage loss benefits should not be paid.
Worker’s submission:
The worker was represented by a union representative who argued that the worker mitigated his workplace injury by complying with the direction which was given to him by his orthopaedic surgeon and physiotherapist. Given that he had non-compensable surgery on his left knee earlier that year, there was fear of long term damage and he needed to give his knee the proper amount of rest to allow himself to recover. After following his doctor’s instructions and allowing his knee to rest, he was able achieve a complete return to work. It was submitted that the decision of Review Office should be upheld.
Applicable Legislation:
Pursuant to section 37 of The Workers Compensation Act (the “Act”), where as a result of an accident, a worker sustains a loss of earning capacity or an impairment or requires medical aid, compensation is payable. Subsection 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends, or the worker attains the age of 65 years. The issue in this case concerns when the worker’s loss of earning capacity ended.
Analysis:
For the employer’s appeal to be successful, we must find on a balance of probabilities that during the three periods in question, the worker’s earning capacity was greater than that which was determined by Review Office. We are unable to make that finding.
October 11 and 12, 2007
With respect to the period October 11 and 12, 2007, the employer submitted that the return to work medical release completed by the hospital attending physician on October 10, 2007 indicated that the worker was capable of modified work. The panel notes, however, that the return to work medical release completed by the orthopaedic surgeon on October 16, 2007 indicated that the worker should be off work effective October 10, 2007, until at least October 30, 2007. In view of the fact that the orthopaedic surgeon had a longer history with the worker and had treated the worker since his left anterior cruciate ligament (“ACL”) surgery in February, 2007, we prefer the opinion of the orthopaedic surgeon to that of the emergency room doctor. The panel also notes that on October 15, 2007, the worker did attempt a return to work at modified duties, but was only able to manage 3.75 hours before he had to quit due to pain and swelling. The panel therefore finds that the worker was completely disabled on October 11 and 12, 2007 and was entitled to full wage loss benefits for those two days.
October 16 to November 2, 2007
With respect to the period October 16 to November 2, 2007, the panel again prefers the opinion of the orthopaedic surgeon who recommended that the worker remain completely off work until October 30, 2007. The WCB paid full wage loss benefits to the worker until October 30, 2007, after which partial wage loss benefits were paid based on an earning capacity of four hour days. As noted earlier, the orthopaedic surgeon was familiar with the worker’s condition and given the relatively recent surgery in February, 2007, it was not unreasonable to use caution in the return to work. We therefore find that the worker was entitled to full wage loss benefits from October 16 to October 30, 2007, and partial wage loss benefits (based on an earning capacity of 4 hours per day) from October 31 to November 2, 2007.
November 20 to December 4, 2007
During the period November 20 to December 4, 2007, the medical reports indicate a suspicion of a possible occult fracture which was a much more serious injury for which diagnostic tests were ordered. This elevated the worker’s injury from a strain to a more serious condition which justified a less aggressive return to work pending the completion of the diagnostic tests. The panel notes that the worker did in fact return to modified work on a 4 hour per day basis, and experienced difficulty, despite the sedentary nature of his modified duties. When questioned by the panel, the worker indicated that while performing sedentary duties, he tried to elevate his leg, but this was difficult to do at a desk. He would take breaks to elevate and ice his leg, but doing so for short periods of time did not achieve much relief. After four hours, he would experience increased pain and swelling and after working the morning, he would regularly go to his physiotherapist after lunch to receive treatment consisting of hot and cold packs, ultrasound and TENS therapy.
The physiotherapist’s report of November 19, 2007 sets out a comprehensive assessment of the worker’s condition at that time and recommends a change in work plans to remain at 4 hour work shifts. As the worker had been meeting with the physiotherapist regularly three times per week at this time, the panel accepts that she was in a very good position to assess his ability to work. Her report also notes that the employer was being very accommodating and was not pressuring the worker to perform any duties which were outside of his restrictions at the time. Nevertheless, he was still experiencing significant increase in pain after four hours of modified duties.
The panel notes that there is no medical evidence contrary to the physiotherapist’s recommendation that the worker remain on four hour shifts until his next appointment with his surgeon after the MRI results were available.
Ultimately, the MRI results showed that the ACL graft was intact and there was no evidence of any other acute intra-articular injury. By report dated December 3, 2007, the orthopaedic surgeon recommended a graduated return to work, which was followed by the worker. On December 4, 2007, the worker resumed a full time eight hour shift.
In the panel’s opinion, given the worker’s history of recent left knee surgery and the increased symptoms he experienced in mid-November after returning to work, it was reasonable for the worker to follow medical advice and remain at four hour shifts until December 3, 2007, when the results of the MRI were available to be reviewed with his orthopaedic surgeon. Even though it is undisputed that the employer offered a comprehensive and respectful return to work program, the panel finds on a balance of probabilities that the worker’s left knee condition prevented him from working modified duties for a full eight hour shift from November 20 to December 4, 2007. The worker is therefore entitled to partial wage loss benefits from November 20 until he resumed full-time work duties on December 4, 2007.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 16th day of October, 2008