Decision #24/11 - Type: Workers Compensation
Preamble
The worker has a claim with the Workers Compensation Board ("WCB") related to a right knee injury. The issue under appeal relates to whether or not the worker was capable of performing modified duties during the period December 3, 2009 to February 3, 2010. The WCB's Review Office felt that the worker would have been able to perform 6 hours of work per day for 5 days per week and therefore determined that the worker was only entitled to partial wage loss benefits during this period. The worker disagreed with the decision and contended that there was medical evidence to support that she was not capable of working 6 hours per day. An appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on January 6, 2011 to consider the matter.Issue
Whether or not the worker was capable of working 6 hour shifts on a daily basis during the period December 3, 2009 to February 3, 2010.Decision
That the worker was capable of working 6 hour shifts on a daily basis during the period December 3, 2009 to February 3, 2010.Decision: Unanimous
Background
The worker filed a claim with the WCB for a right knee injury that she believed was caused by kneeling and squatting for over a week when marking clearance items at work. The worker stated that she began to notice an aching in her right knee in August 2009 but continued working. When her knee started to swell, she decided to seek medical attention.
The worker attended a hospital facility on August 20, 2009 and the attending physician reported findings of mild swelling and mild joint line tenderness. The diagnosis rendered was a right knee strain.
On September 16, 2009, the family physician reported that the worker returned to work but found that standing and walking increased her knee pain.
On November 4, 2009, an orthopaedic specialist reported his examination findings regarding the worker's right knee. He noted that radiographs demonstrated mild to moderate degenerative changes affecting mainly the medial compartment. The differential diagnosis was a medial tear and/or exacerbation of chondromalacia patella. He noted that an MRI was pending.
The MRI of the right knee taken on November 12, 2009 revealed the following findings:
- Tricompartmental chondromalacia, most profoundly involving the medial femoral tibial compartment; and
- Radial tear of the inner aspect of the posterior horn medial meniscus.
On November 17, 2009, a WCB medical advisor commented that in his opinion, based on the mechanism of injury, the diagnosis was an aggravation of an extensive pre-existing condition of the knee. He also stated, "The consult note from [orthopaedic specialist] is of some concern as the worker arrived at his office in a wheelchair. She also apparently is taking a pain protocol for a non-compensable condition. The described injury in terms of aggravation should recover within 6 weeks of date of injury."
In a further note to file dated November 19, 2009, the WCB medical advisor indicated that in his opinion, any residual complaints would be related to the degenerative condition of the knee and this included the findings on the medial cartilage.
On November 18, 2009, a WCB case manager wrote to the worker advising that in the opinion of the WCB, the ongoing problems with her right knee were not related to the compensable injury and therefore a cause and effect relationship between her current knee problems and her compensable injury could not be established. The worker was advised that partial wage loss benefits would be paid to December 2, 2009 as it was understood that the worker had returned to work part time hours.
On November 20, 2009, the orthopaedic specialist reported to the treating physician that the chondromalacia in the worker's knee was a chronic degenerative condition and could not be directly ascribed to her work injury. He stated there was a reasonable possibility that the meniscal tear did occur at work. At the very least, he said the worker experienced an exacerbation of her underlying condition. The specialist was of the view that the WCB was in error when it denied the worker coverage for this injury. He felt the worker would have difficulty performing her job duties for 8 hours per day. The worker was prescribed a medial unloader brace in an attempt to provide her with some pain relief as well as an injection to the right knee.
In a follow up report dated December 4, 2009, the orthopaedic specialist stated that the worker was still limited to working 4 hours every other day and that the medial unloader brace had helped her somewhat with weight bearing activity. The worker still complained of ongoing severe discomfort medially and wanted to have an arthroscopy performed. He stated that the worker was told that the procedure would be directed at the torn meniscus and was unlikely to improve symptoms related to her osteoarthritis.
In a form entitled "Functional Abilities Form for Safe & Timely Return to Work" dated December 4, 2009, the orthopaedic specialist indicated "Restricted to 4 to 6 hrs per shift as tolerated, as determined by the patient."
On December 7, 2009, the worker advised the WCB that she was working 6 hours a day, three days a week in the jewelry department. She was wearing a brace which helped with her knee.
In e-mail correspondence dated December 14, 2009, the employer noted that the worker expressed interest in returning to her department and had currently been working lighter freight. A chair was available although the worker did not use it too much. The employer also indicated that they could offer the worker a number of seated positions such as answering phones, breakpacks/repacking, greeting, zoning and other light administrative activities.
On December 14, 2009, a WCB orthopaedic consultant stated that the proposed arthroscopic partial medial meniscectomy should be authorized as a WCB responsibility and that the estimated recovery period would be four to 6 weeks maximum. The consultant noted that the worker had advanced degenerative osteoarthritis of the right knee joint and was most probably a candidate for total joint arthroplasty in the future. He was unable to give a firm opinion as to whether the mechanism of injury would be responsible for a torn medial meniscus but on a balance of probabilities, he felt the workplace incident may have caused an extension of the pre-existing degenerative tear.
In a letter dated December 16, 2009, the case manager indicated to the worker that the WCB would cover the costs related to her knee surgery. The letter also stated:
…in relation to your job duties, I have received information from your employer you are working in your home department doing some lighter freight tasks, and a chair has also been provided. The employer can also offer other seated positions that being answering phones, breakpacks and repacking at a table where you can sit and stand, along with greeting and zoning you can sit and stand as necessary. Your employer also had indicated that there also are light administrative tasks. They are able to provide you with these tasks 8 hours a day. You can sit and stand as necessary.
Therefore, the decision that had been provided in November 2009 regarding your ability to continue on working light duties has not change (sic).
In a doctor's progress report dated January 6, 2010, the family physician indicated that the worker was capable of performing modified duties with the following restrictions: "4 hours every other day, with walking/standing as tolerated, and no heavy lifting (< 10kg as tolerated). If tolerating 4 hours every other day, may advance to 6 hours every other day, but if not tolerated should reduce to 4 hours again."
On January 22, 2010, the worker spoke with a case manager about her return to work program. The worker expressed concerns that she was assigned to fitting rooms duty for longer than she should be and was concerned that she could not sit and her back was now bothering her. The worker did not feel that she was able to work full hours on modified duties.
On January 26, 2010, the worker's husband advised a WCB sector services manager that the accident employer was not providing his wife with the duties that they said they would. He noted that his wife was left on her own in the fitting room area for over 4 hours. It was busy and she had to get up and stand for lengthy periods of time which made her worse so she went home. He noted that the employer was to provide the worker with sitting duties which had never been offered to her. He noted that the treating orthopaedic specialist gave his wife a note to be off work entirely for the next 6 weeks. He noted that his wife was taking pain medication which made her sleepy and he did not think she could work at all while awaiting surgery.
On January 27, 2010, the employer advised the WCB that they couriered a letter to the worker on January 26, 2010, which outlined the modified duties that they had available. The duties involved tagging where the worker could sit all the time and put stickers on items. The worker was aware of this position on January 22, 2010 but she refused to return to work.
On January 29, 2010, the treating physician reported that the worker continued to have knee pain and surgery was planned for mid February. Since the last visit, he noted that the pain in the worker's back had worsened. The pain was across the low back which started after lifting at work in early January. He indicated that the worker was not capable of alternate or modified work.
In a report dated January 29, 2010, the orthopaedic specialist indicated that the worker's arthroscopy was cancelled due to a shortage of nurses to provide post-operative care. He noted that the worker complained of severe pain in the low back with radiation down both legs, worse on the left. She stated that this began at work when she was asked to do some lifting of 30 pound boxes. The specialist stated that the worker should remain off work for the next 6 weeks or until this episode resolved.
On February 4, 2010, the worker had knee surgery for chondromalacia and a medial meniscus tear right knee.
In a submission dated February 8, 2010, a worker advisor outlined the view that the worker had a loss of earning capacity as a result of her compensable meniscal injury and was therefore entitled to partial wage loss benefits beyond December 2, 2009.
On March 30, 2010, Review Office determined that the worker was to receive partial wage loss benefits between December 3, 2009 and February 3, 2010 based on the assumption that she was fit to work 6 hours per daily shift. Review Office acknowledged medical evidence from the attending physicians which supported that the worker would not be fit for full 8 hour shifts but indicated that half shifts were likely too passive an approach regarding the worker's capabilities in her rehabilitation program and gradual return to work plan. On May 10, 2010, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.
WCB Board Policy 44.80.30.20 (the “Deeming Policy”) deals with “Post Accident Earnings - Deemed Earning Capacity.” Loss of earning capacity is defined as the difference between a worker’s average earnings before an accident and what the worker is determined or deemed to be capable of earning after the accident. Among other things, the Deeming Policy specifically describes how deemed earning capacity will be determined for individual claims and states that it must be demonstrated that a deemed earning capacity is reasonable and realistic. Where deemed earning capacity is used, it means that wage loss benefits will be paid as if the worker were actually earning the deemed amount.
Worker’s Position
The worker was assisted by a worker advisor at the hearing. It was submitted that with any rehabilitation and return to work plan, the physician's recommendations and restrictions should be accepted. The physician's imposed restriction in the present case was a maximum of four hours every other day. There was no opinion from a WCB medical advisor to disagree with this imposed restriction. The evidence also indicated that there was an inability on the part of the worker to increase her hours beyond the four hours every other day. The worker was suffering aggravations of her condition while working just four hours per day, three times per week and so it was submitted that she would not have been able to extend her hours to 6 hours per day, five days a week as determined by Review Office. Overall, the worker's position was that an adjustment to the wage loss benefits was warranted.
Employer's Position
A representative from the employer participated by teleconference. The employer's position was that the worker was capable of working 6 hours per day, five days per week and that the employer did offer suitable work to accommodate her medical restrictions. The basic symptom which the worker complained of was pain, and the employer offered a variety of duties to accommodate this complaint.
Analysis
The issue before the panel is whether the worker was capable of working 6 hour shifts on a daily basis during the period December 3, 2009 to February 3, 2010. In order to decide the appeal, the panel must consider the evidence regarding the worker’s post-accident condition and abilities and determine whether the worker was capable of working this amount or whether her compensable injury disabled her from achieving this level of earning capacity. After reviewing all of the evidence, the panel finds that the worker was capable of working 6 hour shifts on a daily basis.
The submission made by the worker advisor stressed that the worker's physicians had imposed restrictions of working four hours every other day. The panel notes, however, that the restriction also contained a qualification. In the functional abilities form completed by the treating orthopedic surgeon on December 4, 2009, he wrote: "Restricted to 4 to 6 hours per shift as tolerated, as determined by the patient." In a subsequent form filled out by the family physician on January 4, 2010, the restriction was noted as: "Restricted max 4 hours every other day, as per [orthopedic surgeon's] notes from December 4, 2009. If tolerated, may advance to 6 hours on some days."
In the panel's view, we cannot decide this appeal by simply applying the "4 hours every other day" restriction to the worker's situation, regardless of the evidence regarding her actual work ability. We feel this appeal must be determined by considering the job demands and the worker's condition during the relevant time and by making a finding as to what hours of work the worker could reasonably have tolerated during that period.
After reviewing the evidence on the file and from the hearing, the panel finds that the worker could reasonably have worked 6 hours on a daily basis. In coming to our conclusion, the panel relied to a large extent on the progress notes which were completed by the worker after she completed each shift during the relevant time. We feel that these are a reliable reflection of the worker's capabilities during the period in question.
At the hearing, the worker indicated that her job duties in the fitting room area were not appropriate for her because she was constantly standing to let people into the rooms and bending down to pick up hangers. She claimed that she was not supposed to bend at all. The progress notes from January 2010, however, all indicate that the worker's condition was the same or better when performing those duties. The worker did record some difficulties on January 15, 18 and 20, 2010, but the panel notes that on January 15, the worker indicated she "just had a bad night", suggesting a non-compensable cause for her discomfort that day. Overall, it would not appear that the fitting room duties themselves were causing significant aggravation of her right knee condition. The restrictions associated with this injury did not include the requirement to avoid bending.
With respect to the job duties in the cosmetics department, the worker's evidence at the hearing was that the regular tasks she was assigned in that department did not cause her difficulty. She had the aid of a wheelchair and a walker and was able to self-pace her work. The progress notes document some difficulties she had in December, 2009 while working in that department when she performed some duties which were outside of her restrictions. It would appear that the store manager was unaware of her limitations and unfortunately, the worker overexerted herself in trying to do the work that was asked of her. The employer did recognize that there were communication problems, and tried to set up a meeting to discuss appropriate duties for the worker. The originally scheduled meeting had been cancelled to accommodate the worker's condition, and before another meeting could be held, the worker obtained a date for her surgery, thus that discussion never took place.
Throughout the file, it appeared that the employer did try to accommodate the worker whenever possible. The worker had originally been assigned to stationary duties, but she did not like that position due to the work environment, so she was moved. The worker expressed a desire to return to her original department, thus the employer tried to accommodate the worker in the fitting room position. When the worker expressed concerns about that position, the employer tried to arrange a meeting so a discussion could be held. At the hearing, the worker noted that completely sedentary positions which the employer said were available were never actually offered to her. It would appear, however, that this was due to the fact that the worker expressed a desire to return to her own department.
Overall, the panel feels that the worker could reasonably have worked 6 hour shifts from Monday to Friday. In fact, the file indicates that the worker was already working 6 hour shifts in December, 2009 while in the cosmetics department (at the hearing, the worker could not specifically recall the number of hours she worked). The panel does not see any barriers in the regular duties provided to the worker and we think that she could reasonably have tolerated this amount of work.
As a result, the panel finds that the worker was capable of working 6 hour shifts on a daily basis during the period December 3, 2009 to February 3, 2010. The worker's appeal is therefore dismissed.
Panel Members
L. Choy, Presiding OfficerR. Koslowsky, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 24th day of February, 2011