The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

In deciding appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

The worker is seeking wage loss benefits for the period August 31, 2009 to January 20, 2010. 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. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.

WCB Policy No. 43.20.25, Return to Work with the Accident Employer, applies to cases where injured workers are unable to return to their regular duties.

Worker's Position

The worker was represented by a worker advisor who provided a written submission and made an oral presentation on the worker's behalf.

In the written submission the worker advisor wrote that evidence confirms that the worker had ongoing difficulties due to an undiagnosed complication of his compensable injury, which required workplace restrictions that prevented a return to work, as well as surgical repair. The worker advisor reviewed the evidence and submitted, in part:

"…the evidence supports [the worker] had not fully recovered from the effects of his compensable injury when his return to work commenced. The evidence also establishes the true demands of the worker's position were misunderstood by the WCB and understated by the employer, and that the position is incompatible with the restrictions recommended by the treating orthopaedic surgeon. Instead of providing suitable work that addressed the medically-documented limitations, the employer sent [the worker] home…

We submit that the evidence supports the ongoing effects of the worker's compensable injury prevented him from returning to his pre-accident work. He responded honestly to his employer's inquiries about his recovery, but we suggest the employer overstated the extent of his comments. Despite his symptoms, [the worker] cooperated in his return to work and reportedly appreciated the benefit of doing so. He used a knee brace directed by his surgeon, but the employer refused to accommodate him in the workplace when its need and other restrictions were confirmed. Both the employer and WCB disregarded [the worker's] concern over his knee and simply pushed through with their initial return to work plan. When medical evidence revealed a complication that confirmed the validity of the worker's complaints, the WCB did accept further responsibility, but refused to admit the failed return to work was ultimately due to ongoing effects of [the worker's] compensable injury.

In conclusion, we submit the following supports [the worker's] loss of earning capacity during the period in question is a consequence of his compensable injury:

· [the worker] returned to work and performed the duties provided to him,

· He shared concerns over ongoing difficulties related to his compensable injury,

· [the first orthopaedic specialist] and [the occupational health physician] observed quadriceps wasting, a condition known to affect joint stability.

· The worker did not "self-impose" restrictions, rather his general practitioner and orthopaedic surgeon provided specific workplace restrictions,

· These medical restrictions conflict with essential tasks of the worker's pre-accident employment duties,

· The employer refused to offer modified or alternate work within these restrictions.

· The worker's previously-expressed concerns were validated by [the second orthopaedic specialist's] discovery of the Cyclops lesion, and his symptoms resolved after its excision,

· While the employer's representative alleges [the worker's] comments caused them to send him home, it was their choice to do so, and the evidence establishes this decision related to the worker's compensable injury."

The worker advisor expressed concern that the WCB inappropriately applied WCB Policy 44.10.30.60, Practices Delaying Worker's Recovery and that the WCB relied upon the opinion of a WCB orthopaedic consultant who did not examine the worker.

Regarding the employer's suggestion that it was unsafe to allow the worker on the worksite, the worker advisor noted that under Manitoba's Workplace Safety and Health Act, there’s a duty to provide some other work. He noted they did not find him work but gave him a form to have completed by his physician. When he came back with restrictions that were confirmed, based on an examination, the employer did not allow him to do his pre-accident work or any work in the plant.

The worker answered questions asked by his representative, the employer's representative and the panel.

The worker denied that he told his employer that his knee gave out on 4 occasions. He said there was only one occasion when his knee gave out and that he told his employer about this incident which occurred while cutting grass.

In answer to a question, the worker advised that the orthopaedic specialist who performed the Cyclops surgery told him that he had movement in his knee. The worker acknowledged that this finding was not in the physician's report.

The worker was asked how his knee compares pre and post-surgery, the worker replied: "The spring’s starting to come back. It’s starting to feel stable. It’s not like I am waiting for that jabbing feeling. Like, every time I’d lean forward and put my weight on it, it would just feel like my knee would give out and I’d get that jabbing feeling -- something jabbing at me; and it’s more comfortable now."

The worker denied that he told the WCB case manager that he would have to use a ladder up to 50 times a shift. He said he would need to use the ladder about 20 times. The worker advised that he did not know if he could do his job on the return to work. He said that he never had the opportunity to try.

Employer's Position

The employer was represented by an employer advocate who made an oral presentation and answered questions from the panel. The employer's position was that it was willing to accommodate the worker in July of 2009, and offered the worker duties that were deemed to be suitable by the WCB. The employer representative said on his return to work, the worker expressed numerous concerns about the state of his knee. He submitted that the employer attempted to accommodate the worker but that he expressed considerable pessimism about the extent of his recovery from his knee surgery. These remarks by the worker led them to believe that they might be in breach of The Occupational Health and Safety Act, and in particular, returning somebody to work who could, for instance, spontaneously fall.

He stated that it is also the employer’s position that the restrictions that the worker claimed were in excess of those that might be expected from a cyclops lesion. He referred to the opinion of the WCB orthopaedic consultant. The employer representative referred to literature on file which describes the symptoms that are associated with the cyclops lesion such as pain on extension. He notes however that the worker complains of pain on flexion. He noted that an occupational health physician found no problem with extension and that the worker could crouch and squat. He said that the worker's problems with flexion are not commensurate with a cyclops lesion.

Analysis

The worker is seeking wage loss benefits for the period from August 29, 2009 to January 20, 2010. For the worker's appeal to succeed, the panel must find that the worker suffered a loss of earning capacity during the noted period as a result of his workplace injury. In addressing this issue, the panel has considered whether the worker was capable of performing his pre-accident duties and whether restrictions should have been imposed by the WCB for his return to work.

As a preliminary matter, the panel notes that in dealing with the evidence on the file and given at the hearing, we found the worker to be a poor historian and that his evidence at the hearing conflicted with evidence in the file, as noted in the worker's answers to questions posed by the panel (see worker's position above). We therefore give greater weight to the evidence on file that was provided contemporaneously to the events than to the worker's recollection that were provided at the hearing. Specifically we attach greater weight to the employer's notes of conversations with the worker and were written at the time of the events in question, and greater weight to the written medical reports than the worker's recall of events and of discussions with his medical practitioners. Contrary to his assertion that he did not discuss his knee and his concerns with his employer, we find that the worker did express significant concern about his ability to return to work and the extent of instability in his knee.

The panel notes that much of the discussion in the file and at the hearing dealt with the need for restrictions governing the worker's return to work and in particular, whether the worker's knee was unstable and/or the need for a brace, which would have affected his ability to perform his pre-accident jobs. The worker's orthopaedic surgeon, in a Physical Capabilities Analysis form, dated July 28, 2009, indicated the worker was capable of returning to his normal job on a graduated basis and that the worker "Needs ACL brace at work. Some activities may be limited because of brace." The WCB, however, determined that no restrictions were needed. In arriving at this conclusion, the WCB relied upon the August 24, 2009 opinion of a WCB orthopaedic consultant who considered the need for a brace and commented:

"The written reports by the orthopaedic surgeon confirm that the reconstructive procedure has been satisfactory and in his opinion, the knee is stable. Therefore, it is difficult to understand why he recommends continuing use of a brace which I consider to be unnecessary. It would seem that the orthopaedic surgeon is responding to statements from the claimant that the knee is unstable and that he would be at risk because of this."

The WCB orthopaedic surgeon wrote to the treating orthopaedic specialist seeking his reason for recommending the use of a brace but did not receive a reply.

The WCB orthopaedic surgeon reviewed the file again in December 2009 after a cyclops lesion was identified. In a report dated December 11, 2009 he commented that the worker's knee joint is stable, the ACL graft is satisfactory and the worker does not need the ACL brace. The existence of the cyclops lesion did not alter the WCB orthopaedic surgeon's opinion regarding the worker's ability to return to work.

It appears to the panel that the request for the ACL brace is related to the worker's concern about an unstable knee. We have considered the evidence regarding the instability of the worker's knee. We find that the worker's complaints of instability are not corroborated by the evidence on file. We note that the treating orthopaedic specialist reported the ACL repair surgery to be successful and did not report instability. We also note that the worker indicated that the second orthopaedic specialist found the worker's knee to be unstable, however the operative report dated January 21, 2010 does not confirm this. This report notes "a nice stable ACL reconstruction with minimal anterior drawer and no true pivot shifting", a "nice snug knee" and "…the ACL reconstruction again looked to be solid…"

We are unable to find that the worker has an unstable knee and therefore find that the ACL brace was not required and the restriction on use of the brace is unwarranted.

As to the impact of the diagnosis of a cyclops lesion, we considered the literature provided by the occupational health physician and note that this literature indicates that diagnosis of cyclops lesions is based on complaints of pain and progressive loss of extension. The occupational health physician's letter of November 19, 2009, notes that upon examination the worker had no pain on resisted knee extension. He also found the worker could perform a full crouch and squat. We accept the December 11, 2009 opinion of the WCB orthopaedic consultant who acknowledged WCB responsibility for the cyclops removal surgery but did not impose any restrictions on the worker's return to work. We therefore find that the cyclops lesion did not result in any functional limitations that needed to be accommodated by way of compensable restrictions that would have affected the planned return to work.

We note that the worker was to return to his normal duties without restrictions. We find, having reviewed the medical information and the job duties, that compensable medical restrictions were not needed and accept the conclusions of the WCB orthopaedic consultant in that regard. We note that a worksite visit was conducted on May 19, 2010. The summary of this visit notes that the operator will have to climb ladders but that "…use of ladders and climbing varies however it would be considered occasional use and not repetitive." The summary also noted there was no indication of tasks which required repetitive kneeling or crawling. We also find that the worker raised barriers to the return to work which resulted in the employer sending the worker home.