The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing a decision that was made by Review Office of the Workers Compensation Board (“WCB”) which determined that he was not entitled to wage loss benefits prior to the date of his left knee surgery. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on May 12, 2009 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits prior to the date of his left knee surgery.

Decision

That the worker is entitled to wage loss benefits from August 18, 2008 to October 20, 2008 inclusive.

Decision: Unanimous

Background

The worker suffered an injury to his left knee in a work related accident on August 11, 1999. His claim for compensation was accepted and various types of benefits and services were paid.

As the worker has work restrictions due to his left knee injury that prevented him from returning to his pre-accident employment, the case was referred to the WCB’s vocational rehabilitation branch to assist the worker with finding alternate employment. An occupational goal of working within National Occupational Classification [NOC] 6421, Retail Sales Person and Sales Clerk, was later developed. On July 5, 2006, it was determined by an appeal panel under Decision No. 89/06 that this occupational goal was appropriate for the worker.

On May 13, 2008, the worker's family doctor offered the view that the worker would not be able to fit into a retail position generally, but no reference was made to the status of the worker's knee at this point in time.

In a report to the family physician dated July 8, 2008, an orthopaedic surgeon noted that the worker was experiencing an aching pain in the medial aspect of his left knee after standing or walking on cement floors for 2 to 3 hours.

In taking the worker's history, the surgeon noted that the worker denied mechanical symptoms of catching, giving way or locking of his knee. The surgeon noted that the worker “had had some swelling.” The surgeon's examination on that day did not document any material swelling. He suggested that there was “tenderness over the medial femoral condyle to deep palpitation but that the remainder of the knee examination was normal.”

The surgeon reported that an MRI examination nearly a year ago showed OCD of the medial femoral condyle without a loose fragment but with some overlying articular cartilage injury. More recent x-rays showed some changes in the medial femoral condyle consistent with OCD but no loose fragments were identified. There did not appear to be any joint space narrowing. The surgeon opined that the worker had chronic medial sided knee pain from OCD of the medial femoral condyle. He felt that a repeat arthroscopy to drill the OCD lesion would bring fresh blood flow and hopefully stimulate further healing. According to materials provided by the worker, patients with OCD usually have poorly localized pain and swelling and knee pain increases with strenuous activity and twisting motions.

On July 15, 2008, the worker told his vocational rehabilitation consultant (“VRC”) that his left knee condition had deteriorated, that he was on heavy medication and that his surgeon was recommending a repeat arthroscopy. Based on these factors, the worker felt that he was unable to work in retail sales and asked the WCB to place his deem on hold pending the results of his surgery.

On August 5, 2008, a WCB orthopaedic consultant was asked by case management to review the file and to provide an opinion as to whether or not the worker would be able to continue working in retail sales until the recommended surgery had taken place. In response, the orthopaedic consultant noted that there was no information on file to suggest that the worker’s current status would prevent him from working in retail sales. In support of his opinion, the consultant noted that the orthopaedic surgeon reported a normal left knee examination six weeks ago with medial tenderness on deep palpation.

The consultant was also asked to comment on whether not the recommended surgery would preclude the worker from working within his compensable restrictions. The consultant responded that a simple arthroscopy with minor debridement may result in symptoms which would preclude the worker from functioning within his compensable restrictions for a maximum period of 15 to 20 days. If a more invasive procedure was done (i.e. micro-fracturing), the recovery period could be longer, and would require specific information from the surgeon in follow up as to the progress of recovery.

On August 18, 2008, the worker was examined by his family physician who indicated that the worker's left knee was tender and swollen with a restricted range of movement. He suggested that the worker was not able to work until he had his surgery. A Toradol injection was also provided by the physician. The worker was examined again on August 20, 2008. His doctor advised that while the range of movement had improved, the knee was still swollen and warm to the touch. In the physician's view, the worker was not able to perform regular duties.

In a decision dated August 21, 2008, the WCB case manager advised the worker that his case had been reviewed by a WCB medical advisor and there was no indication that he was unable to work in retail sales until surgery had taken place. The case manager noted that the decision was reached after considering the physical job requirements of retail sales (NOC 6421), his restrictions outlined in July 2006 and the current medical information by the specialist.

On August 26, 2008 the WCB orthopaedic specialist noted that that he reviewed the medical information submitted by the family physician for a number of examinations that took place in August 2008. He stated that “It is improbable that there would be a significant change in the clinical presentation arising out of the compensable injury. The information regarding heat, reduced ROM, swelling and a diagnosis of “tendonitis” might indicate a new unreported, non-work related injury since the orthopaedic surgeon’s assessment. In the CM memorandum of August 19, 2008, the claimant was reported as noting that he had no other accident. In any case, the job requirements are well within the light category, and my opinion regarding working until the arthroscopy is unchanged.”

Following an examination dated September 4, 2008, the family physician recommended that the worker employ crutches. The worker's left knee was noted to have swelling and tenderness with a restricted range of motion.

In a decision dated September 5, 2008, the WCB case manager advised the worker that current medical information had been reviewed on August 26, 2008 and no change would be made to the decision made on August 21, 2008.

On September 30, 2008, a worker advisor wrote to the WCB case manager requesting reconsideration of the August 21, 2008 decision. Included with the submission was a report from the family physician dated September 29, 2008 which provided his opinion that the worker would not be capable of performing any minimum wage duties until his surgery and that it would take him some time after surgery for him to recover. The worker advisor indicated that this opinion supported that the worker was not capable of performing duties in retail sales while on crutches prior to his surgical treatment.

On October 1, 2008, the WCB orthopaedic consultant contacted the family physician to discuss the worker’s claim and the following information was documented:

…[the family physician] described the clinical findings around the time of the August 18 report and it appears that there was a change in that there were (sic) more inflammation, swelling, heat and pain. He said that he recommended the claimant use crutches and prescribed anti-inflammatory medication, but that his recent assessment showed marked improvement, and crutches were no longer required…I also explained that I given (sic) an opinion that the classification of this work would fall well within the established restrictions. I also explained that I had responded to Case Management that the claimant should be capable of working within these restrictions pending a proposed arthroscopy surgery at which time full wage loss benefits would be reinstated and followed up.

The WCB consultant said that the family physician advised him that he was seeing the worker every two to three days in his office.

On October 20, 2008, the worker was examined by his family physician who noted that the pain has improved and that swelling and tenderness had reduced. The family physician did not offer a comment on whether the worker was able to perform his retail duties.

On October 23, 2008, the worker was advised by his case manager that he would be entitled to full wage loss benefits starting the date of his surgery.

In a submission to Review Office dated November 12, 2008, the worker advisor requested reconsideration of the October 23, 2008 decision which indicated that the worker was not entitled to wage loss benefits prior to his upcoming surgery. The worker advisor noted that the worker was unable to place weight on his knee due to pain and swelling and that he required the use of crutches. The worker also felt that he was unable to stand or walk for long periods of time and could not bend his knee or climb stairs. This evidence supported that the worker was not capable of performing full time duties in retail sales prior to his surgical treatment.

On November 18, 2008, Review Office determined that the worker was not entitled to wage loss benefits prior to the date of his left knee surgery. Review Office placed weight on the following file evidence in making its decision:

· there was no mention in the May 13, 2008 report of the family physician of any knee symptoms that would keep the worker from his employment.

· when examined by the orthopaedic surgeon on July 8, 2008, there was no report of tendinitis and although there was tenderness over the medial femoral condyle it was only with deep palpation. The rest of the knee examination was reported as being normal.

· on August 18, 2008, the worker had a diagnosis of tendinitis reported by the attending physician. There was insufficient evidence to conclude that this condition was the result of the compensable injury.

· the opinion expressed by the WCB orthopaedic consultant on October 1, 2008 to the family physician.

Based on the above factors, Review Office indicated there was insufficient evidence to conclude that the worker’s compensable left knee condition would render him incapable of working within the capacity of retail sales until the date of his left knee surgery. On December 4, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

The Oral Hearing

During the course of the oral hearing, the worker and his advisor suggested that the worker was not capable of performing his duties in retail prior to the date of his left knee surgery.

The worker's representative relied in particular upon the September 29, 2008 report of his family doctor which referred both to the swelling in the worker's knee and to the need to put the worker on crutches in order to avoid putting weight on his knee.

She also referred to a prior oral conversation between the worker and his family physician where it was noted that part of the proposed treatment plan for the worker was to be “able to get the swelling down prior to surgery.” In her submission, the treatment plan involved the worker keeping the leg elevated as much as possible and employing crutches because “when [the worker] used the crutches and stayed off of his knee, the swelling and the pain and the other symptoms reduced.”. Although he was uncertain about the date, the worker suggested that his conversation with the physician probably took place in September, 2008.

The worker advisor suggested that retail duties would likely require the worker to be on his feet for considerable periods of time. In her view, the demands of retail work were inconsistent with the worker’s need to be off his feet and on crutches. It was the advisor's submission that the worker's physical condition at the time was incompatible with his retail job duties. As a result, she argued, there was a loss of earning capacity.

During the course of the hearing, the panel questioned the worker about the date of the onset of his swelling. The worker was asked to identify an examination prior to August 20, 2008 which made reference to swelling on the worker's knee. The worker's representative referred the panel to the July 8, 2008 report of the surgeon which had a reference to prior swelling. However, she confirmed that:

… he was taking patient history at that point in the examination. On his examination, he does not report swelling, but the swelling was part of the patient history during the particular examination.

The worker did not identify any change in his daily activities between the time of his July 2008 examination in which no swelling was reported and the August 18, 2008 examination by his family doctor in which material swelling was identified:

I go for coffee lots or go walk around. I got (sic) a big yard and my nephews and that take care of the yard, so I go out and sort of like supervise them and not much more… nothing really changed, because I don't play any sports…I never did anything off the ordinary.

The worker later indicated that he was not using his crutches in the period immediately preceding his surgery because the swelling in his knees had gone down.

The crutches I used for the week or two or more like two weeks. It helped enough that the swelling went down and I . . . didn't want to be going around with crutches . . . That was the worst with my knee. Like it got to that bad, but when I used them for a couple of weeks, . . . then I didn't use them again.

The worker advisor closed by noting that the worker was seeking recovery of wage loss benefits from the time his relocation plan ceased or finalized up to the time of the compensable surgical treatment.

Reasons

Accordingly, the appeal is allowed.

Panel Members

B. Williams, Presiding Officer
B. Simoneau, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer

Signed at Winnipeg this 7th day of July, 2009