The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was capable of performing the modified duties offered to him by his employer and therefore was not entitled to wage loss benefits after February 26, 2012. A hearing was held on February 26, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after February 26, 2012.

Decision

That the worker is not entitled to wage loss benefits after February 26, 2012.

Decision: Unanimous

Background

On February 18, 2011, the worker sustained an injury to his left knee when he slipped on ice during the course of his employment. The worker reported that his left knee went straight out and his right leg went behind him. The claim for compensation was accepted and benefits and services were paid. In November 2011, the worker underwent a total left knee replacement which was accepted as a WCB responsibility.

On January 3, 2012, a WCB sports medicine advisor stated that based on the orthopaedic assessment of December 20, 2011, the worker was capable of performing sedentary duties with the following workplace restrictions:

• The opportunity to change positions while standing and walking and to limit the prolonged duration of same;
• To avoid ladder climbing and walking on uneven surfaces; and
• To avoid more than occasional squatting, kneeling, crawling and pivoting of the left knee.

On January 10, 2012, the employer advised that sedentary duties were available for the worker that involved sitting at a check-in where the worker could stand and stretch his leg as required.

On February 3, 2012, the worker underwent further surgery to improve the range of motion in his left knee. The surgical procedure was accepted as a WCB responsibility.

On February 9, 2012, the treating physiotherapist reported that the worker was capable of sedentary duties with limited weight bearing and walking, and frequent breaks to sit. The duration of these restrictions was estimated to be six weeks.

In a telephone conversation on February 22, 2012, file notes indicate that the physiotherapist confirmed that the worker could walk up to two blocks to get to work in the morning and leave at day's end. A special parking spot and assistance of a wheelchair were suggested to eliminate all barriers.

In a follow-up report dated February 23, 2012, the treating surgeon noted that the worker's range of motion had dramatically improved with flexion to past 100 degrees and that the "manipulation" surgery was worthwhile. The surgeon noted that the worker had a rocky post-operative course and his post-operative complications had left him with more pain and swelling than usual. He recommended that the worker refrain from returning to work and that he continue with range of motion and strengthening exercises. It was expected that the worker could return to modified duties within the next 4 to 6 weeks.

On February 24, 2012, the employer advised the WCB that the worker called to say that he would not return to modified duties on February 27, 2012 as his surgeon advised him to stay off work for another 4 to 6 weeks.

By letter dated February 27, 2012, the worker was advised that the WCB considered him physically fit to return to modified duties as of February 27, 2012 and therefore he was not entitled to wage loss benefits as of that date. The decision was based on opinions by the worker's own treating physiotherapist as well as a WCB physician. On May 3, 2012, the worker appealed the decision to Review Office.

On June 20, 2012, Review Office determined that the worker was not entitled to wage loss benefits after February 26, 2012. Review Office indicated that the file information showed that the worker was not totally disabled after February 26, 2012 and was capable of performing the modified duties offered to him by his employer without causing further complication or aggravation to his compensable injury. Review Office felt that the treating surgeon did not provide reasons or direct findings to support his recommendation that the worker needed 4 to 6 weeks of additional time loss. Review Office accepted the treating physiotherapist's opinion that the worker was capable of sedentary duties and was capable of walking more than a couple of blocks at a time without issue. Review Office felt that the worker "refused to participate in suitable work" and he did not have a "degree of disability" that would preclude him from performing the modified duties offered to him on February 23, 2012. On October 31, 2013, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

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.

WCB Policy 43.20.25, Return to work with the Accident Employer (the “Return to Work Policy”) outlines the WCB’s approach to the return to work of injured workers through modified or alternate duties with the accident employer. The Return to Work Policy describes suitable modified or alternative work as follows:

Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker's pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers.

In order to determine if the worker is medically able to perform suitable work, the WCB will compare the worker's compensable medical restrictions and capabilities to the demands of the work.

The worker’s position:

The worker was self-represented in the appeal. At the outset, the worker advised that his injured left knee was still not completely healed. It was sore and clicked when he walked, but nevertheless, he said he would never undergo another knee replacement. The worker had a very tough time with his procedure with significant post-operative complications. He referred to the treating surgeon's report of February 23, 2012 which indicated the worker was left with more pain and swelling than usual and a recommendation not to return to work at that time but rather to continue with range of motion and strengthening exercises. The worker's evidence was that he had to work on his knee every day to exercise it or else risk losing any gains he had made.

The worker stated that he tried to return to work on a part time basis, but the pain was too severe. His priority was to get his leg fixed; he did not care much about the money. The worker disputed that there was such thing as a completely sedentary position because in order to properly service customers, he was required to get up and in some cases perform lifting or pushing. It would not have been acceptable for him to simply sit in a chair. The worker also noted that with the extreme pain he was experiencing, he would not have been able to appropriately interact with the public, thus making it impossible to work.

Overall, the worker's position was that his surgeon had authorized further time off work and that time was needed for him to work on recovery of his leg. The modified duties offered by the employer were not suitable because they were not truly sedentary. The worker would still be required to get up and move around in order to service customers properly.

The employer's position:

The employer was represented by a disability management manager who participated in the hearing via teleconference. The employer supported the WCB's decision and submitted that although the surgeon had recommended further time off, no objective findings were provided to substantiate the additional time off. The treating physiotherapist confirmed that the worker was able to return to work and perform the modified duties offered, with support regarding parking, which the employer agreed to provide. The WCB medical advisor also confirmed the ability to return to modified duties. It was submitted that while the worker continued to experience pain and was partially disabled, he was not totally disabled and was capable of performing the modified duties offered by the employer.

Analysis:

The issue before the panel is whether or not the worker is entitled to wage loss benefits after February 26, 2012. In order for the appeal to be successful, the panel must find that after February 26, 2012, the worker's ability to earn his pre-accident income was impaired. We are not able to make that finding.

As at February 26, 2012, the worker's compensable left knee replacement surgery left him with reduced range of motion, pain and stiffness. The panel acknowledges the difficult recovery experienced by the worker and we do not wish to minimize the challenges he experienced in dealing with the complications. Nevertheless, by February 26, 2012, the worker was over three months post-surgery and three weeks post arthrofibrosis manipulation. He had been attending physiotherapy regularly and the physiotherapist's report of February 9, 2012 indicated he was capable of sedentary duties with limited weight bearing/walking and frequent breaks to sit. This was confirmed in a telephone conversation with the WCB on February 22, 2012 at which time the physiotherapist indicated that the worker was capable of walking two blocks to come to and from work. The WCB medical advisor also opined that the worker was capable of sedentary duties.

The modified duties offered by the employer consisted of predominantly sedentary duties. The worker identified a number of situations which could arise during the course of the day in the accommodated position which may require him to stand and walk short distances. The panel finds that this degree of mobility was within the two block distance which the physiotherapist opined the worker was capable of walking. The worker also identified some requirements to push and lift. The file material as well as the employer's evidence indicated that the worker was not expected to perform these duties and that other staff would be available to assist. At the hearing, the worker was adamant that he would not be able to refuse to perform these services for customers. While the worker's dedication to providing a high level of service is admirable, the panel does not find that pushing and lifting were required duties in the accommodated position.

The WCB file material also reflected concerns about travelling to and from work and the distances the worker would be required to cover in order to get from his vehicle to his work station. The employer indicated a willingness to provide a close parking spot and/or transportation to the main building which would address these concerns. In fact, when the worker did return to the workplace, he was provided a close parking spot which he continued to have use of until his retirement. In view of same, the panel accepts the employer's evidence that they would have provided assistance and finds that parking and transportation would not have been a barrier to the worker's return to work after February 26, 2012.

The panel does not accept the worker's submission that he would have been unable to work because of the pain. The panel finds that the physical demands of the work were very low and the accommodated position offered by the employer could have been suitable work which would have enabled the worker to minimize his loss of earning capacity. The panel feels that the worker should have at least attempted to return to work rather than outright refusing to do so based on his pre-conceived perceptions as to his ability to manage the pain. Although the surgeon supported further time off work due to "more pain and swelling than usual," the panel does not feel that the general observations of pain and swelling are sufficient to support a finding of total disability and we therefore prefer the physiotherapist's and WCB medical advisor's opinions of ability to perform sedentary work over the surgeon's recommendation.

The panel therefore finds that the accommodated position was suitable work and had the worker attempted a return to work, he would not have suffered any loss of earning capacity. As such, the panel determines that after February 26, 2012, the worker's ability to earn his pre-accident income was not impaired and he is not entitled to further wage loss benefits after that date. The worker's appeal is 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 15th day of April, 2014