Decision #49/12 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he was capable of working full time with restrictions related to his compensable right knee injury. A hearing was held on February 13, 2012 to consider the matter.Issue
Whether or not the worker is capable of working full time.Decision
That the worker is not capable of working full time.Decision: Unanimous
Background
The worker injured his right knee on December 19, 1991 when he "…fell, in a squat position, on the greasy floor, injuring my right knee." A right knee arthrogram dated February 17, 1992 revealed a right posterior medial meniscus tear. On March 27, 1992, the worker underwent arthroscopy followed by meniscectomy for a bucket handle tear posterior third right medial meniscus. The claim for compensation was accepted and benefits were paid to the worker. In May 1992 the worker returned to work.
Sixteen years later, in October 2008, the worker contacted the WCB to advise that he was having further difficulties with his right knee. Responsibility for his knee complaints was accepted by the WCB and the worker underwent a right total knee arthroplasty on July 15, 2009 for post-traumatic osteoarthritis. By January 2010, it was determined by the worker's family physician that he was capable of returning to work on a graduated basis.
File records show that the worker was unable to progress working beyond four days a week at four hours per day due to pain and swelling in his knee. In May 2010, arrangements were made for him to undergo a four week reconditioning program with the goal to increasing his hours at work.
On July 15, 2010, the attending physician noted that the worker was probably going to decrease his work hours due to knee stiffness.
On August 18, 2010, the worker was seen by a WCB orthopaedic consultant for a medical assessment. The examination findings outlined were as follows: "Extension of the right knee appears to be gradually improving and it is now almost full compared with the left knee. The range of flexion of the right knee is now 77 degrees. The claimant reports discomfort and a tight feeling about the knee with activity. X-rays, blood work and a white cell scan were all normal. This would tend to rule out infection of the arthroplasty." The consultant recommended a Functional Capacity Evaluation ("FCE") to determine the worker's functional capacity as it related to the worker's present job, which was conducted on September 20, 2010.
On September 28, 2010, the worker was seen by a second orthopaedic surgeon who stated:
…[the worker] has a difficult problem in that he has osteofibrosis following his right knee replacement. Unfortunately, he has made no improvement over the past 10 months despite a persistent stretching program at home. His patellar baja is suggestive of fibrosis around his patellar tendon. This is usually related to removal of the fat pad at the time of surgery and this is a difficult problem to correct. As I have mentioned, these components are in good position and there is no evidence that malposition is contributing towards the stiffness.
Revision for this particular problem is difficult in that studies on outcomes after revision of the stiffness do not demonstrate significant improvements in a majority of patients and at most, improvement is moderate. I have therefore advised [the worker] at this time to persist with conservative measures. A gentle progressive stretching program may improve his range of motion over the next few years…it will sometimes take patients two to three years before they will plateau…I, however, cautioned him that he is unlikely to regain more than 100 degrees of flexion and it is well recognized that a functional range to allow the patient to go up and down stairs normally requires approximately 105 degrees. I do not think this is obtainable for him.
On November 12, 2010, the WCB orthopaedic consultant stated that in his opinion, the worker was probably at or very close to his Maximal Medical Improvement ("MMI"). He did not think that the range of motion of the worker's knee would significantly improve and he would have expected the pain to subside and the worker to be able to work more hours. Restrictions were "medium work with no lifting over 30 lb and no lifting from the floor. Continue working 3 hours per day, 3 days per week. Re-assess these restrictions in 3 months."
On January 5, 2011, the worker advised the WCB that his employer could no longer accommodate his restrictions and partial hours. The worker voiced concerns with working a full 8 hour day because of the pain and stiffness in his knee that he continued to experience.
On January 13, 2011, the WCB orthopaedic consultant recommended that the work restrictions of November 12, 2010 be considered permanent and added permanent restrictions of no running, no excessive use of stairs and ladders and avoid squatting. The consultant indicated that although the worker had restricted range of flexion of the knee and there was patella baja on x-ray, there were no reported objective findings that would indicate the worker could not work full time within the work restrictions noted above or that he could not tolerate a normal degree of standing and walking. The consultant stated on January 28, 2011 that, in his opinion, the patella baja did not affect the worker's ongoing management.
On March 2, 2011, the WCB issued a decision to the worker that the medical findings supported that he was capable of working full time hours within his permanent restrictions.
File records indicate that the accident employer was able to accommodate the worker within his permanent restrictions in a full time position as a shipping and receiving clerk's helper.
A report received from the second orthopaedic surgeon dated March 25, 2011 indicated that the worker had been working a 40 hour week but was having difficulties with sitting for long periods of time because his knee got stiff and painful and he now developed pain in his back and hip as a result. It was suggested that further modifications be made to the worker's job position.
On April 26, 2011, the worker appealed the decision that he was capable of working full time within his permanent restrictions. He also appealed the amount of his permanent partial disability award.
On April 26, 2011, the worker's attending physician reported that the worker's back and hips ache at the end of the workday and his knee swells. He noted that the worker finds that five days a week for three hours is good but working beyond that is a problem. The physician indicated that the worker should be limited to working three hours a day for five days a week.
On May 19, 2011, the WCB orthopaedic consultant noted to the file that the report from the attending physician did not outline any objective findings that would indicate the worker is unable to work full time hours within the permanent work restrictions.
On May 25, 2011, the worker was advised that his file had been reviewed by a WCB orthopaedic consultant and the recent medical findings did not support that he was unable to work full time hours within his permanent restrictions and that no change would be made to the previous WCB decision.
On June 2, 2011, Review Office determined that the worker was capable of working full hours. Review Office noted that the worker's employer was able to accommodate him with a position that was sedentary in nature with some standing and limited walking. The worker could alternate his position except when checking the truck loads. Review Office noted that given the alternate duties were within the permanent restrictions, were sedentary in nature and the worker could alternate his position, it found that there was no evidence on file to support that the worker could not perform the alternate duties full time.
A further report was received from the attending physician dated August 18, 2011 which stated:
…this man sustained an injury 15-20 years ago which resulted in osteoarthritis of his knee. He is now well past the postop recovery time for total joint arthroplasty. In summary, his knee is no better than preop. It swells, it burns, and he has pain posterior-ward. He has stiffness symptomatically. He notes swelling that occurs in the knee. He has noted locking in the knee. His left hip, back, and knee have started to become painful since the total joint arthroplasty as well…At present, he cannot work eight hours a day. He can tolerate three to four hours per day. It should be noted that the range of motion is not a subjective of (sic) finding but rather there (sic) an objective finding. It is certainly a cause of pain postop total joint arthroplasty. It is currently limiting him from being able to work eight hours a day.
At the worker's request, Review Office considered the report submitted by the attending physician dated August 18, 2011. On October 20, 2011, Review Office indicated that the clinical findings noted on the report had been noted on previous medical reports and that no change would be made to its previous decision that the worker was capable of working full hours. The worker disagreed with the decision and an appeal was filed with the Appeal Commission.
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.
Worker’s Position
The worker was self-represented at the hearing and accompanied by his spouse. The worker's position was that due to pain, swelling and loss of right knee range of motion, he was not capable of working a full eight hour day. At the hearing, the worker described his return to work after the July 15, 2009 total right knee replacement surgery. After the initial period of recovery, he returned to work for three hours per day, three days a week. At this level of work, the worker said that his knee would still swell up, but was manageable. In March 2011, the WCB determined that he should be able to work 40 hours per week. The worker did return to work full time but said that he began to experience increasing problems. He stated that his knee would become so swollen that he could hardly walk. Due to his awkward gait, his hip and back started to bother him as well. It continued to get worse and worse, and he found that he began losing his temper and yelling at everyone, which did not reflect the kind of person he had been before.
Since March 2011, the worker had been continuing to work full time. He described it as a struggle, but financially, he was not in a position to retire yet. The worker felt that if he went back to work for three hours a day, he could probably survive, but at the full time level he was currently performing, he had constant swelling, pain and aggravation. The worker feared that he was causing increased damage not only to his right knee, but to his hip and back as well.
Analysis
The issue before the panel is whether or not the worker is capable of working full time. 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 is capable of working this amount or whether his compensable injury disables him from achieving this level of earning capacity. After reviewing all of the evidence, the panel finds that the worker is not realistically capable of working full time and should only be considered capable of working four hour shifts.
At the hearing, the worker was asked to describe his current job duties. The WCB file material indicated that since March 2011, the employer had been accommodating the worker in a full time alternate duties position within the permanent restrictions of no lifting greater than 30 lbs, no lifting from the floor, no excessive use of stairs and ladders and avoidance of squatting. The worker described his job as being very similar to his pre-surgery position, except that he was not taking part in the working area. In a typical day, he would walk through the shop to make sure that his men were there and he would give them a description of what they had to do for the day. He would then get in the truck and run to the other shop to check on the men there and make sure that they had material. When a shipping truck came in (approximately three per day), he would supervise the unloading of the material. After signing for the shipment, the worker would go back to the office to make packing slips. The worker acknowledged that the job was largely sedentary and he would only be required to be on his feet for about an hour during a three hour shift. On an eight hour shift, he would be on his feet for a little longer than 2 or 2 ½ hours throughout the day. It was a self-paced job and he had the ability to sit when needed. He described his standing tolerance at about 10 minutes. As the day progressed, his leg became more and more swollen and by the end of the day, his range of motion was as little as 20 degrees due to the swelling. Although the swelling would be down when he started work at 6:00 am, by about 9:30 am the swelling would be severe. On the weekends, his knee would not usually swell up until around 12 noon.
The worker said that when he was on three hours per day, he could come home after work and still be able to walk around the block. Since working full time, he described having a hard time walking to and from his car. His evenings were spent lying horizontally with a pillow between his legs. He could not even sit up in a reclining chair to watch television.
When asked how much he thought he would be able to work, the worker felt that he could do three and a half hours, five days per week, so long as he lay down and iced the knee when he got home. The worker stated that his knee would still be swollen after working three and a half hours, but hopefully the hip and back issues would go away.
On reviewing the medical evidence on the WCB file, it is documented that the worker's total right knee replacement surgery was not entirely successful. The March 25, 2011 report from a second orthopaedic surgeon confirmed that the worker failed to regain a satisfactory result from the surgery and that the knee was now stiff. Revision surgery was not recommended as it would be difficult to obtain good results.
Following the July 2009 surgery, the worker's range of motion in his right knee was reported by his orthopaedic surgeon at an October 15, 2009 follow-up appointment as: "100 degrees flexion. Probably not likely to get much more." At an examination almost two years later on August 18, 2011, the surgeon noted that the range of motion was now only 10-70 degrees. He also described the reduced range of motion as a cause of postoperative pain and stated that it was limiting the worker from being able to work eight hours per day. In the panel's opinion, it is evident that the worker's total knee replacement was not successful and that the stiffness he experiences in his knee has increased since the time of surgery.
In the August 18, 2011 report of the orthopaedic surgeon, he reports that the worker cannot work eight hours a day and that his tolerance is limited to three to four hours per day. The family physician similarly supports reduced working hours. The worker's own estimate is that he could work three and a half hours per day, five days per week. On reviewing the evidence on file and the evidence given at the hearing, the panel is satisfied on a balance of probabilities that the stiffness the worker experiences in his knee as a result of the unsuccessful total right knee replacement prevents him from working on a full time basis. For over a year, the worker has attempted to perform full time hours, but consistently finds that his knee swells up so badly that he is left in significant pain at the end of each work day. This is despite the fact that his job is largely sedentary and self-paced, with the ability to change positions as needed throughout the day. The job is within the permanent restrictions recognized by the WCB, but simply being upright and mobile is sufficient to cause the disabling swelling in his knee.
As a result, the panel finds that the worker is not capable of working full time. Based on the comments by the worker and the opinion of his orthopaedic surgeon, we find that a work schedule of four hours per day, five days per week could reasonably and realistically be sustained by the worker.
The worker's appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 12th day of April, 2012