Decision #125/09 - Type: Workers Compensation
Preamble
This appeal concerns a decision made by the Review Office of the Workers Compensation Board (WCB) which determined that the worker had recovered from her compensable injury and was fit to return to work. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on September 10, 2009 to consider the matter.Issue
Whether or not responsibility should be accepted for the worker’s right knee surgery; and
Whether or not the worker is entitled to wage loss benefits beyond December 7, 2008.
Decision
That responsibility should be accepted for the worker’s right knee surgery; and
That the worker is entitled to wage loss benefits beyond December 7, 2008, as set out in the reasons that follow.
Decision: Unanimous
Background
On September 26, 2008, the worker injured her right knee during her work duties as a food services attendant.
When speaking with a WCB adjudicator on October 6, 2008, the worker described the September 26, 2008 accident as follows: “Was lifting a batch of pink lids out of the dish machine, as she went to put on the top shelf, she slid on the wet floor, went to hold onto the shelf, left side of her body planted and her right knee kept slipping, causing her to hyper extend her knee and she tore cartilage in her knee.” The worker indicated that she was experiencing symptoms of a swollen and painful knee and could only walk for about 10 minutes. If she sat for too long, her knees pulsed. With regard to prior difficulties, the worker noted that she slipped before at the same place, and fell on both knees onto a rubber pad. The worker advised she was born with a ligament disorder which was fixed about 10 years ago.
On October 7, 2008, the worker’s claim for compensation was accepted based on the provisional diagnosis of a right knee strain with a possible right medial meniscus tear.
On October 21, 2008, a return to work meeting took place between the worker, the employer, a union representative and WCB adjudicator. Restrictions were outlined for the worker to avoid bending, squatting and no lifting more than 15 lbs. The graduated return to work program was to begin on October 27, 2008.
On October 23, 2008, the worker advised the WCB that she saw her attending physician and that her restrictions were altered (i.e. to avoid lifting more than 10 lbs. and no standing/walking over 10 minutes) and that an MRI was being arranged. On October 24, 2008, it was documented that the worker’s return to work program was placed on hold as the employer was unable to accommodate the worker with the standing/walking over 10 minute restriction.
An MRI of the right knee was done on November 10, 2008. The results read as follows: “Complex tear posterior meniscal root lateral meniscus complicated by parameniscal cyst.”
A video surveillance of the worker’s activities was arranged by the WCB for November 10, 2008, November 27, 2008 and December 8, 2008. On each date, she was seen in retail stores moving without difficulty for periods of time in excess of 10 minutes.
The worker was seen by a specialist on an expedited basis on December 1, 2008. The specialist noted that the worker had significant pain and swelling following the work accident on September 29, 2008 and that the pain was anteromedially and anterolaterally. After walking for a half hour the knee became stiff and painful. It tended to give way on her at times and it had locked on approximately three occasions. The specialist indicated that the worker had a right lateral meniscal tear that was symptomatic and she would be placed on a waiting list for a right knee arthroscopy.
On December 15, 2008, the file information and video surveillance was reviewed by a WCB medical advisor at the request of primary adjudication. Following this review, the medical advisor stated:
“The worker had a twisting injury followed by primarily lateral tenderness. A lateral meniscus tear was noted on MRI. Video surveillance demonstrates full ROM [range of motion] of this knee with the ability to fully squat repeatedly and for a sustained period of time. Someone with a symptomatic clinically significant meniscus tear would not be able to do that. It would appear that the worker has recovered from the effects of the C/I [compensable injury].”
In a decision dated December 18, 2008, the worker was advised that in the opinion of the WCB, she was fit to return to her pre-accident duties and had recovered from the effects of her compensable injury. The worker was further advised that wage loss benefits would be paid to December 15, 2008 and the proposed surgery would not be authorized by the WCB. In reaching her decision, the case manager stated,
“Your claim was accepted for a right knee strain. MRI evidence identified a lateral meniscus tear; however, your complaints were focused on the medial side of your knee. The surveillance evidence demonstrated that you are capable of sustained walking and standing, as well as kneeling and crouching, with no difficulty resuming a standing position. You were also observed jumping. This evidence, along with the lack of lateral pain, or effusion confirms that the lateral meniscus tear identified on MRI is not clinically significant and does not warrant surgical intervention. The compensable diagnosis therefore, remains a right knee strain, which has now resolved…It is unfortunate that you did not feel it important to advise the WCB of the exact nature of your condition and functional abilities. The fact you allowed your physician to recommend restrictions which were clearly out of proportion to your actual capabilities should be construed as fraudulent.”
An advocate representing the worker appealed the case manager’s decision of December 18, 2008 to Review Office. The advocate stated that the surveillance video (17 and 11 days apart) showed the worker appeared to be walking and standing (kneeling on three occasions) without difficulties. It also showed that her activities were leisurely and were a far cry from what she would be required to do at work. The advocate indicated that the accusation by the case manager was false as the restrictions recommended by the worker’s physicians were based on objective findings.
On February 23, 2009, an advocate for the employer wrote to Review Office. The advocate stated that they agreed with the decision made by the case manager on December 18, 2008 but also felt that the worker could have returned to work on October 27, 2008 as planned had she not misrepresented her capabilities. The advocate therefore felt that the worker’s wage loss benefits should end retroactive to October 27, 2008.
On March 18, 2009, Review Office determined that wage loss benefits were not payable beyond December 7, 2008 as it was felt that the worker was fit for the employer’s original offer of modified duties effective December 8, 2008 and that responsibility was not accepted for the worker’s right knee surgery. As a rationale for its decision, Review Office indicated that the video surveillance was the true objective evidence of the worker’s functional status. Review Office agreed with the WCB medical advisor’s opinion concerning the worker’s lack of pain behavior and fluid mobility on the video surveillance when she arose from a squat position on multiple occasions and kneeled/squatted for up to 30 seconds. Review Office noted that the change in the worker’s restrictions by the attending physician were based on the worker’s subjective presentation to him and not based on clinical objective medical evidence. After reviewing the video surveillance evidence, Review Office saw no reason for altering the restrictions.
Review Office agreed with the WCB medical advisor’s opinion that if the torn lateral meniscus was deemed significant, the worker would not have had the fluidity and lack of pain behavior when rising from the kneeling/squatting position and lack of a limp.
Review Office indicated that it relied on the video evidence of December 8, 2008 showing the “impressive function of the right knee…during the worker’s kneeling/squatting” to determine that the worker was fit to be back at work in a GRTW [graduated return to work] plan.
Lastly, Review Office felt that the repair of the lateral meniscus was not a WCB responsibility as the majority of the worker’s complaints after her compensable injury were in the medial aspect of the right knee and not the lateral aspect. Review Office also found no evidence that the actual tear of the lateral meniscus occurred on September 26, 2008 as the worker’s function was shown to be impressive in the video surveillance. On April 15, 2009, the worker’s advocate appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
In a memo dated April 27, 2009, Review Office clarified its decision of March 18, 2009. It stated, “It is the position of Review Office that wage loss benefits are not payable beyond December 7, 2008 as it is felt the video evidence establishes that a compensable loss of earning capacity does not exist beyond that date. Thus Review Office feels the worker should have been back at work by December 8, 2008. It is unfortunate the phrase “GRTW” was used in the decision letter…the intent of the decision is that wage loss was not to be extended beyond December 7, 2008.”
Following the hearing held on September 10, 2009, the appeal panel requested additional information from the employer’s advocate and a union representative to ascertain whether or not the worker was offered modified duties in November or December 2008. This information was later received and was forwarded to the interested parties for comment. On November 17, 2009, the panel met further to discuss the case and render its final decision on the issues under appeal.
Reasons
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
Subsection 4(1) of the Act provides:
4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.
Pursuant to subsection 37 of 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. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
Subsection 40(1) sets out how loss of earning capacity is to be calculated and provides as follows:
40(1) The loss of earning capacity of a worker is the difference between
(a) the worker’s net average earnings before the accident; and
(b) the new average amount that the board determines the worker is capable of earning after the accident;
which amount shall not be less than zero.
Subsection 22(1) of the Act deals with the duty of a worker to co-operate and mitigate and provides as follows:
Worker to co-operate and mitigate
22(1) Every worker must
(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;
(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker’s recovery; and
(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker’s recovery.
The worker’s position:
The worker was represented by an advocate. It was submitted that the worker’s wage loss benefits were discontinued primarily, if not entirely, based on the worker’s activities shown on video surveillance. The activities shown in the surveillance were, however, no comparison to a full shift on a slippery floor in the kitchen, which her regular duties would have involved. Medical opinions on file supported that the meniscal tear was related to the workplace incident and further indicated that it is possible for patients with a meniscal tear to have good days and bad days. Thus the video surveillance was not conclusive. It was also submitted that although the worker was not able to accept the modified duties offered to her in October, 2008, she was cleared by her physician for modified duties three weeks later. The worker’s position was that she repeatedly tried to advise the WCB of the change in restrictions, but never got a response. She gave a medical note to her employer but was told that they did not want her back until all her restrictions were lifted. The worker took the initiative to try to return to work, but was not offered anything until March, 2009. In summary, it was argued that cutting off wage loss benefits was not justified and that the surgery should be the responsibility of the WCB.
The employer’s position:
The employer’s position was that the video surveillance revealed the worker’s true capabilities and showed that the worker’s meniscal tear was not a disabling condition. It was also submitted that the employer was willing and able to accommodate reasonable restrictions for a meniscal tear. The worker magnified her disability and was, in fact, capable of returning to work on October 27, 2008 as initially planned. Finally, with respect to responsibility for the surgery, the employer supported the reasoning of the WCB which noted that the worker’s complaints of knee pain on the file related to the medial, rather than lateral meniscus. The worker had other knee ligament problems which could have been the cause of the lateral meniscus tear. If, however, the panel accepted that the lateral tear in the worker’s knee was the result of the compensable injury, then benefits should only be paid for the period of recovery from surgery.
Analysis:
There are two issues before the panel. We will address each one in order.
1. Whether or not responsibility should be accepted for the worker’s right knee surgery.
The first issue deals with responsibility for the worker’s right knee surgery which was performed on April 28, 2009. In order for the appeal to be successful, the panel must find that the surgery was required to cure and provide relief from the lateral meniscal tear injury the worker suffered to her right knee, as per subsection 27(1) of the Act. We are able to make that finding.
The WCB has accepted that the worker suffered a meniscal tear to her right knee in the workplace accident of September 26, 2008. While the WCB determined the tear was not clinically significant, the tear was described as symptomatic by the treating orthopedic surgeon and arthroscopic surgery was recommended. Even though the video surveillance of November/December 2008 may have shown the worker standing, walking, squatting, and, briefly, jumping, we cannot conclude from this that the recommended surgery was not required. The treating orthopedic surgeon still considered the surgery to be medically necessary and he proceeded to perform the surgery on April 28, 2009. The panel accepts the comments of the treating sports medicine physician who stated in his letter of June 18, 2009: “It is fully conceivable that at times the meniscal tears may not be subluxing and hence be minimally symptomatic … I do not doubt that at times her symptoms would be minimal. This is not unusual in people with meniscal pathology, to have good days and bad days.”
The panel is satisfied that even though the worker did not appear to be symptomatic in the video surveillance, the surgery was still required by the worker to cure and provide relief from a compensable injury. We therefore find that responsibility for the surgery should be accepted by the WCB. The worker’s appeal is allowed.
2. Whether or not the worker is entitled to wage loss benefits beyond December 7, 2008.
For the worker’s appeal to be successful on this issue, we must find on a balance of probabilities that after December 7, 2008, she continued to suffer a loss of earning capacity as a result of her compensable injury, and that she was not in breach of her obligation to co-operate and mitigate pursuant to subsection 22(1) of the Act, which might disentitle her to wage loss benefits.
At the hearing, the worker’s evidence was that although on October 23, 2008 her physician increased her standing restriction to avoid standing more than 10 minutes per hour, this was a temporary restriction, and that by her next visit to the physician on November 18, 2008, this restriction was eased back to avoid standing for more than 30 minutes per hour. The worker claimed that this information was provided to both the employer and to her WCB case manager. The employer’s records, however, indicate that they only became aware of the change in restriction on January 28, 2009.
The worker disputes this information and claims that she provided the employer with medical notes dated November 18, 2008 and December 9, 2008 which indicated the reduced restrictions, and that when she did so, the employer informed her that she would not be accommodated until all of her restrictions were removed.
The worker also claimed that she was in regular contact with her WCB adjudicator saying that she wanted to get back to work. Her evidence was that in November, 2008, she called her WCB adjudicator about four or five times per week. The WCB file has notations of telephone contacts on November 22, December 4, December 12 and December 15, but none of the notations reference a reduction in restrictions or a desire to return to work in the modified duties position. The attending physician provided Doctors Progress Reports dated November 18, 2008 and December 9, 2008 which both indicate that the worker was capable of light duties, but did not outline the restrictions, and specifically, the change in the standing restriction from 10 minutes to 30 minutes.
There is consensus between the worker and the employer that in late January, 2009, they met to discuss a graduated return to work and as a result of those discussions, the worker was accommodated in a modified duty position starting March 30, 2009. She commenced by working a 2 hour shift, three times per week, and her hours were gradually increased to a three hour shift, three times per week. The accommodated position respected the following work restrictions: “No walking or standing more than 30 minutes per hour, no bending or squatting and no lifting more than 25 lbs.” The worker continued in this modified duty position until the day before her surgery in April, 2009.
Under the Act, a worker is entitled to wage loss benefits for loss of earning capacity, which is outlined in subsection 40(1) as the difference between the worker’s earnings before the accident and the amount that the worker is capable of earning after the accident. With this formula in mind, the panel finds that the worker’s loss of earning capacity beyond December 7, 2008 was as follows:
December 8, 2008 to January 27, 2009
During this period of time, the worker’s restrictions had been eased back to avoiding standing for more than 30 minutes. The panel finds that the employer could have accommodated this restriction and the worker was therefore capable of returning to work at this time. We do not, however, accept that she could have returned to her regular duties. She was still suffering from a lateral meniscus tear which was symptomatic (albeit intermittently) and her regular position required too much walking and standing on an often slippery kitchen floor for her to be able to safely resume these duties.
In the panel’s opinion, subsection 22(1) of the Act imposed on the worker a duty to proactively seek out a return to work in the accommodated position previously offered by the employer as soon as she became aware that her physician had changed the standing restriction back to 30 minutes. The panel does not accept the worker’s evidence that she did tell her employer of the change in restrictions and was told that there was no position for her until all restrictions were lifted. This does not seem credible as the employer did, in fact, accommodate the restrictions when the worker returned to work on March 30, 2009.
We also do not accept as credible the worker’s assertion that she was in contact with her WCB adjudicator four to five times a week and repeatedly advised that she wanted to return to work. There is record of four telephone conversations over an approximate one month period, however, none reference the change in restrictions or any discussions about revisiting the modified duties. While there may have been some discontinuity resulting from a change in adjudicators, we do not accept that there is no record of approximately 10-15 conversations between the WCB and the worker, as claimed by the worker.
The accommodation which was ultimately provided by the employer to the worker in the Spring of 2009 consisted of 6 hours of modified duties per week. We think that this is a reasonable gauge to use as a measure of the worker’s earning capacity for the December to January period. The panel therefore finds that the worker was capable of earning wages equivalent to 6 hours per week from December 8, 2008 to January 27, 2009 and is entitled only to top-up wage loss benefits for this period of time.
January 28, 2009 to March 29, 2009
On January 28, 2009, the worker met with her employer to discuss the availability of modified duties. From this date onwards, the worker was actively participating in arranging a return to work, and therefore was no longer in breach of her subsection 22(1) duty to cooperate and mitigate. From this date onwards, the worker was ready and able to perform modified duties. The fact that the employer was ultimately not able to provide modified duties until March 30, 2009 should not penalize the worker. The panel therefore finds that the worker is entitled to full wage loss benefits from January 28, 2009 to March 29, 2009, as representing the time it took to place the worker in a modified duties position.
March 30, 2009 to April 27, 2009
During this period of time, the worker did engage in modified duties and she is entitled to wage loss benefits for her loss of earning capacity, being her pre-accident earnings less the actual amounts earned in the accommodated position.
April 28, 2009 to recovery from surgery
As the panel has determined that the April 28, 2009 surgery is compensable, the worker is entitled to wage loss benefits for the period of recovery following the surgery.
We therefore find that the worker is entitled to wage loss benefits beyond December 7, 2008. The worker’s appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
D. Zirk, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 23rd day of December, 2009