The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to additional temporary total disability benefits in relation to his bilateral knee condition. A hearing was held on August 22, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to additional temporary total disability benefits.

Decision

That the worker is not entitled to additional temporary total disability benefits.

Decision: Unanimous

Background

The worker suffered an injury to his left knee in a work-related accident on April 27, 1977. The claim for compensation was accepted based on the diagnosis of a medial meniscus tear and osteoarthritis ("OA") of the left knee. In December 2008, the worker underwent a left total knee replacement for osteoarthritic changes which was accepted as a WCB responsibility.

In 2010, the worker began to experience right knee difficulties which he attributed to increased demands on his right knee due to his left knee surgery.

A WCB orthopaedic consultant stated on October 18, 2011 that the degenerative condition of the opposite knee was not related to the compensable condition of the injured knee. The consultant indicated that during the treatment and surgery for the injured knee, it was understandable that gait alterations would be observed. However, the overall activity would be less than that of a healthy active person, so stresses on the opposite knee would not be more than a healthy active person would experience.

On October 19, 2011, the worker was advised by his case manager that the WCB was unable to accept responsibility for his right knee difficulties. The case manager referred to the WCB orthopaedic consultant's opinion of October 18, 2011. She concluded that there was no relationship between the worker's right knee condition and the injury to his left knee. She noted that the changes to the worker's right knee have consistently been described as degenerative and not the result of the injury.

An MRI of the right knee dated October 31, 2011 outlined the following findings:

1. Moderate degenerative change medial femoral tibial compartment.
2. Tearing medial meniscus complicated by intra meniscal and parameniscal cysts.

On November 30, 2011, a worker advisor prepared a submission to Review Office on the worker's behalf outlining the position that the worker's right knee difficulties came about as a result of his compensable total left knee arthroplasty.

In a decision dated January 30, 2012, Review Office concluded that the worker's right knee difficulties were predominantly attributable to the compensable total left knee arthroplasty. In making its decision, Review Office referred to x-ray results, the medical opinions by the worker's treating physicians and physiotherapist along with a journal article entitled Gait After Unilateral Total Knee Arthroplasty: Frontal Plane Analysis. Review Office also felt that the worker's job as a plant manager required him to be on his feet for extended periods on a daily basis and thus placed greater demands on his right leg/knee.

On February 8, 2012, Review Office clarified that it had accepted that the worker had an exacerbation of his right knee osteoarthritis and that it was up to primary adjudication to determine his entitlement to benefits. Review Office noted that a recent MRI of the worker's right knee taken October 2011 showed a new finding of a tear that was not previously adjudicated by his WCB case manager nor was it considered when making its decision on January 30, 2012. The worker was advised that the WCB would decide on whether the MRI findings were a consequence of the right knee exacerbation or whether it was related to his compensable left knee injury.

In a memo to file dated February 28, 2012, the WCB case manager documented a telephone conversation that she had with the worker. The worker indicated that he was living out of the province as his knees could not take the cold and damp. The worker indicated that he continued to have significant problems with his right knee which he attributed to his altered gait due to his left knee problems. The worker commented that he had to quit work as he was too fatigued and in too much pain to continue. The worker indicated that he had no sources of income.

On April 5, 2012, the WCB orthopaedic consultant stated that the tear of the meniscus of the right knee was most likely degenerative rather than traumatic in etiology because of the horizontal configuration of the tear typical of degeneration. This was supported by the statement of the attending orthopaedic surgeon on February 24, 2012 that there was no history of a twisting injury. It was impossible to link directly the development of the meniscus tear of the right knee with the workplace injury of the left knee. The meniscus lesion was part of the right knee degeneration which had been described by WCB as aggravated. The consultant stated that the reason for onset of OA in both knees may be related to intra-articular bleeds in early life as a result of haemophilia. He stated that the etiology of the majority of OA knees was probably multi-factorial and it was not possible to point to a single causation.

On April 18, 2012, the case manager noted to the file that the worker was not considered totally disabled and was not eligible for wage loss benefits.

In a letter to the worker dated May 2, 2012, the case manager advised the worker that based on updated medical information, it was felt that his right knee OA had not yet settled. The case manager also concluded that the tear in the worker's right knee was degenerative in nature and was not related to his left knee condition. The case manager outlined specific work restrictions related to both knees that would be in place for a six month duration.

On May 11, 2012, the worker underwent right knee surgery. In a report to the worker dated May 29, 2012, the orthopaedic surgeon stated "Arthroscopy was carried out which confirmed the previous x-ray findings of degenerative arthritis and also a degenerative tear of the medial meniscus. This is related to the degeneration of the right knee, which has been determined to be related to the overloading of the right knee due to your previous left knee injury."

In a letter to his case manager dated June 18, 2012, the worker referred to the May 29, 2012 medical opinion and stated that this report supported that his right knee problem was a direct result of his left knee condition.

On June 25, 2012, the case manager advised the worker that "the WCB accepts responsibility for the exacerbation (temporary worsening) of your right knee condition but not for the condition (the osteoarthritis) itself…you had an injury to your left knee that eventually required knee replacement surgery. You have osteoarthritis in your right knee. The WCB has accepted that this osteoarthritis was temporarily made worse as a result of the knee replacement surgery. We have not accepted that your left knee injury, or the increased demands or altered gait on your right knee caused the development of your right knee osteoarthritis."

On August 16, 2012, the worker advisor submitted that the worker was entitled to wage loss benefits related to his recent right knee surgery. The worker advisor noted that because there was a need for surgery, there was an "enhancement" for which wage loss benefits are payable under the WCB's policy regarding pre-existing conditions.

On October 3, 2012, a WCB senior case manager noted that the worker "has voluntarily retired from the workforce and as such, he is not eligible for wage loss benefits as per Policy 44.10.20.55, TTD Benefits to Retired Workers in Cases of Recurrence."

Following consultation with a WCB orthoapedic consultant on October 10, 2012, the worker was advised that wage loss benefits were not payable with respect to his right knee surgery. The case manager referred to the WCB decision of May 2, 2012 that the tear in the worker's right knee was degenerative in nature and was not related to his left knee condition. She noted that the WCB did not authorize the May 11, 2012 surgery. She said the medical information supported that the temporary aggravation of the work's right knee OA condition had resolved and any continued gait disturbance would be the result of the progressive OA of the right knee and not the condition of the left knee. The case manager felt the worker did not have a loss of earning capacity in relation to the May 11, 2012 surgery as he retired from employment on December 30, 2011.

On October 30, 2012, the worker advisor prepared a submission to Review Office outlining the position that the aggravation to the worker's right knee was ongoing, that the WCB was responsible for the right knee surgery and that the worker was entitled to further benefits. The worker advisor also stated that the worker did not retire from the general workforce. Instead, the worker felt he could no longer fulfill his work duties due to his compensable bilateral knee difficulties. The worker advisor noted that the worker was working as a consultant. It was felt that the WCB erred in their assessment that there was no entitlement to benefits based on WCB Policy 44.10.20.55.

In early January 2013, Review Office referred the case back to primary adjudication to revisit their decision concerning the worker's work/retirement situation.

The employer provided the WCB with correspondence stating that the worker retired on December 31, 2011 and that the worker had not provided them with any consulting or other paid services after December 31, 2011. The employer indicated that they were aware of the worker's health problems prior to his date of retirement. The worker did not at any time ask that a formal or informal accommodation be made to assist him while he was actively employed.

In a decision dated January 22, 2013, the case manager determined that the worker had retired from the work force and was therefore not entitled to wage loss benefits. It was noted that when the worker retired from his employment, he did not indicate that his retirement was directly related to his knee injury and that he was not open to efforts by the WCB to assess his workplace accommodations. By the time the worker informed the WCB that he was considering retirement, he had in fact already made that decision and communicated it in writing to his employer.

On January 28, 2013, the worker advisor asked Review Office to re-list their October 30, 2012 appeal. The worker advisor stated that the main reason the worker had to stop working was due to his compensable knee difficulties and not for any other medical condition.

On March 11, 2013 Review Office determined that the worker was not entitled to additional wage loss benefits as there was no loss of earning capacity. Review Office found that the worker retired from the accident employer for personal reasons and thus severed his employer's ability to accommodate him. Review Office indicated that it did not place weight on the suggestion that the worker had not retired from the workforce, as he continued to work as a consultant. Review Office indicated that what the worker chooses to do in his retirement was a personal choice which included returning to the workforce in another capacity.

Review Office noted that the worker did not advise either his employer or the WCB that he was leaving the accident employer to take a new job. It did not find the evidence to support the worker had a further loss of earning capacity in relation to the compensable injury.

In a further decision dated March 21, 2013, Review Office determined that the exacerbation of the worker's osteoarthritic right knee condition had resolved by October 10, 2012 based on the comments made by the WCB orthopaedic consultant on October 10, 2012 and therefore the worker was not entitled to further benefits in regards to his right knee.

On May 16, 2013, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral 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(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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, or the worker attains the age of 65 years.

Worker’s Position

The worker was assisted by a worker advisor at the hearing. The worker's position was that he retired from the accident employer for medical reasons related to his compensable knee difficulties. It was submitted that while performing his regular duties, the worker was continuously experiencing extreme difficulties with his knees, which caused him to have to ice his knees and leave work early. In his employment, the worker was required to do extensive walking and repeated stair climbing. In October 2011, the worker advised the WCB that he was having ongoing problems with his knees and that due to significant pain, he felt he could no longer make good decisions, which was affecting the quality of his work. The WCB confirmed physical restrictions for the worker, but the worker's regular job duties were outside of those restrictions and the employer did not attempt to assist the worker in that regard. As the duties he was performing at work were causing disabling symptoms of pain and objective findings of swelling confirmed by a physician, the worker should be entitled to further compensation benefits as the loss of earning capacity was the result of the compensable injury and not for personal reasons.

Analysis

The issue before the panel is whether or not the worker is entitled to additional temporary total disability benefits. In order for the worker’s appeal to be successful, the panel must find that when the worker left his employment effective December 31, 2011, the effects of his compensable injuries caused him to suffer a loss of earning capacity. We are not able to make that finding.

The main issue for the panel is to determine the reason why the worker left his employment effective December 31, 2011. Were the effects of his compensable injuries such that he could no longer function in his pre-accident employment or did he leave as a result of a personal lifestyle decision? It is always difficult to make these types of determinations, but on a balance of probabilities, the panel feels that the evidence weighs more heavily in favour of the finding that the worker's decision to leave was a personal decision to retire. In reaching this conclusion, the panel relied on the following:

• The panel does not accept the suggestion that because of his knee difficulties, the worker was unable to continue his job duties as the "E Project" manager. At the time the worker left the workplace, most of the floor work had been completed and the E Project had progressed to the point where more sedentary work was available.
• To the extent that the worker's job duties exceeded his restrictions, the panel is of the view that the barriers would be very easily remedied. Extensive walking, lack of a place to sit and the need to go up a flight of stairs to his upper level office to rest his knee were the physical activities which were identified as being problematic for the worker. The panel feels that the provision of a main level area where he could sit and rest his knee would have been a relatively easy accommodation to implement.
• The panel does not accept the assertion that the employer was not willing to accommodate. Although the employer refused to allow the worker to use a motorized scooter post-surgery in 2001, this does not equate to a refusal by the employer to accommodate. A file memo dated October 13, 2011 indicates that the WCB case manager offered to meet with the worker and the employer to work out some sort of accommodation or to enlist the services of a Rehabilitation Specialist. The worker declined this offer. When asked about this at the hearing, the worker indicated that he did not believe that any accommodation was possible, particularly since he had recently asked for a reduction to a 2 or 3 day week and this was denied. The panel is of the view that although a reduced work week may not have been acceptable to the employer, there was other accommodation which could easily have been implemented to reduce the worker's walking and standing time and need to climb stairs.
• By the time the worker had discussions with the WCB in October 2011 about needing to retire because of his knees, the evidence would suggest that he was already on the path towards retirement from which he was not willing to deviate. He had provided a letter dated August 17, 2011 to the employer advising of his decision to retire due to medical issues. This was announced to all employees by a notice dated September 6, 2011. The worker's evidence was that he had had a discussion with the company president prior to this decision and was offered a lucrative financial package in the event that he was to retire.
• While health issues may have been a factor in the worker's decision to retire, the question for the purposes of benefit entitlement is whether or not the worker could reasonably have continued in his employment. When asked at the hearing, the worker confirmed that if accommodations were made, such as having his office on the main floor, he could have been able to continue to work.
• A letter from the employer stamped January 18, 2013 indicated that the worker did not ask that a formal or informal accommodation be made to assist him while actively employed. The worker disputed the accuracy of that statement and his evidence was that the employer refused to accommodate him when he asked for a scooter, when he asked that his office be changed and when he asked for a 2 to 3 day week. The worker said he was told that his job needed him to be out on the floor. The panel accepts that the employer may have refused these requests, but nevertheless, we do not feel that the issue of accommodation had been fully explored. We feel that the worker's job could have performed within his restrictions by implementing relatively simple modifications. By declining the WCB's offer in October 2011 to assist in arranging for accommodation with the employer and choosing instead to retire, the worker effectively made a personal decision which brought an end to his earning capacity with the accident employer.

Based on the above, the panel finds on a balance of probabilities that the worker's decision to end his employment effective December 31, 2011 was a personal decision and accordingly, his loss of earning capacity resulting from this decision is not compensable. The worker's appeal is therefore dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 18th day of October, 2013