The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was capable of working full time hours at alternate duties and therefore was not entitled to wage loss benefits after June 13, 2012. A hearing was held on July 8, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after June 13, 2012.

Decision

That the worker is entitled to wage loss benefits from June 14, 2012 to June 29, 2012.

Decision: Unanimous

Background

On July 26, 2011, the worker twisted her left knee in a work-related accident. The initial diagnosis related to the injury was a left knee anterior cruciate ligament strain. The claim for compensation was accepted and benefits were paid to the worker while she attended physiotherapy treatments.

On September 20, 2011, the worker underwent an MRI of her left knee which identified "Severe truncation of the body and posterior horn of the medial meniscus without evidence of a meniscal flap and a small joint effusion."

On November 24, 2011, an orthopedic specialist reported that the worker was seen in 2003 regarding a possible medial meniscus tear and that surgery had not been carried out. The specialist noted that the worker managed quite well from 2003 up until her present accident and that arthroscopic surgery of the knee joint was recommended. On January 16, 2012, a WCB medical advisor authorized a left knee arthroscopy.

On February 27, 2012, a physical medicine and rehabilitation specialist reported that the worker had a history of a left knee work injury and right and left shoulder, neck and arm discomforts since a motor vehicle accident on November 24, 2011. The specialist's impression of the worker's medical condition was as follows: "Soft tissue injuries to right shoulder/neck region. This should continue to settle over time. Things are a little complicated now with the knee surgery pending at the end of this week. I have encouraged all normal home activities with regard to the neck, shoulder and back regions and to continue with exercises..."

On March 2, 2012, the worker underwent left knee surgery which confirmed a torn medial left meniscus. A partial medial meniscectomy was performed.

In April 2012, the worker returned to alternate duty work at two hours per shift. By May 28, 2012, the WCB expected that the worker would be capable of working full time alternate duties.

At a follow-up visit on April 19, 2012, the orthopedic surgeon reported that the worker was still undergoing physiotherapy treatment and she complained of pain in the left knee joint. The worker also had some numbness in her leg for which no specific reason could be found. The knee joint itself indicated no swelling. The worker said she had swelling in the back of the knee which could not be ascertained. Flexion beyond 90º was slightly painful and there was tenderness over the medial joint line. The specialist noted that the worker should continue working two hours a day and should continue physiotherapy for another month.

On May 9, 2012, the physical medicine and rehabilitation specialist noted that the worker's right arm and right low back continued to give symptoms and that her left knee was recovering slowly. Regarding the left knee, the specialist indicated there was slight anterior soft tissue knee swelling but no discernible intra-articular fluid. Slight stiffness in the knee with gait, which was at almost normal speed. The specialist noted that the worker should consider increasing her work hours up to four hours per day in the next couple of weeks.

On May 18, 2012, the WCB case manager asked a WCB medical advisor to review the medical information and a job site analysis and to comment on whether the worker should increase her hours at work by two hours per week, whether there was medical evidence to confirm swelling of the knee, and whether there was still the need to allow the worker to elevate her leg while working. On May 25, 2012, the WCB's sports medicine consultant indicated there would be no medical contraindication to begin this gradual return to work and that a return to work would promote functional recovery in the worker's knee. He stated that knee swelling after surgery was not a medical contraindication to rehabilitation unless infection was suspected. In order to mitigate swelling or effusion, early movement and range of motion was encouraged. There would be no medical necessity to elevate the leg while working.

Based on the May 25, 2012 medical opinion, the worker was advised by letter dated June 1, 2012 that the graduated return to work program would run between May 31, 2012 through to June 13, 2012. Effective June 14, 2012, it was expected that she would be working full time hours at light or alternate duties.

On May 25, 2012, the orthopedic surgeon noted that the worker tried to go back to work four hours at a time and had to negotiate a ladder one day when she developed more swelling and pain in the knee joint. His examination revealed no swelling of the knee joint, slight pain on the last few degrees for extension and flexion beyond 90º and tenderness over the medial joint line. The surgeon indicated that the worker should continue working two hours per shift until the next visit in a month's time.

File records showed that the employer offered the worker cleaning duties on June 12, 2012 as they did not have alternate duties available with respect to placing stickers onto bags. File records showed that the worker did not work on June 12, 2012.

In a letter dated June 13, 2012, the WCB case manager advised the worker that her employer was willing to modify her pre-accident duties which entailed taking a bunch of plastic bags off a conveyor, inspecting them and then placing them in a box. The worker could use a sit/stand stool while performing these duties and she would not be responsible for lifting the completed boxes. The case manager advised that effective June 14, 2012, the worker would be capable of working full time hours performing the noted modified duties and that no partial wage loss would be paid beyond June 13, 2012.

On June 29, 2012, the worker was seen for an assessment at the WCB offices with respect to her persistent left knee pain. The examining medical advisor stated:

• the current diagnosis was an objectively stable left knee post-arthroscopy surgery.
• the examination showed stable ligamentous structures, no noted atrophy, no effusion, redness, swelling or bruising about the left knee. There was full, passive and active range of motion.
• the diagnosis at this time was medically accounted for in relation to the workplace injury insofar as the worker continued to have a symptomatic left knee. At this point, however, on an objective basis, it would be reasonable to increase her function and conditioning.
• at this point, the worker was capable of workplace accommodation on a full time basis.

By letter dated July 19, 2012, the WCB advised the worker that based on the June 29, 2012 WCB examination, it was felt that she was capable of working her workplace accommodation on a full-time basis. As such, no further wage loss benefits would be paid on the claim as it was felt she was capable of working full time hours performing light duties effective June 14, 2012.

On July 27, 2012, the worker underwent a second MRI which was read as showing:

1. Severe truncation of the body and posterior horn of the medial meniscus without evidence of meniscal fragments, unchanged in the interval.
2. Small joint effusion.

In a report dated August 10, 2012, the orthopedic surgeon indicated that the worker complained of pain in the left knee joint and his examination did not indicate any swelling. There was tenderness over the medial joint line. He noted that the MRI findings of July 27, 2012 were exactly similar to the earlier MRI examination in 2011.

On August 13, 2012, the worker filed an appeal with Review Office stating that the severity of her knee condition prevented her from working more than light duty work. The worker requested wage loss benefits starting May 2012 and asked that the WCB consider the July 27, 2012 MRI results.

In a memo to file dated October 1, 2012, the WCB sports medicine consultant noted that he reviewed surveillance video and found that the worker demonstrated the ability to walk, stand and sit without any noted pain behaviors. The surveillance demonstrated more activity than portrayed to healthcare providers.

On October 5, 2012, Review Office determined that the worker was entitled to full wage loss benefits for June 12, 2012 but not beyond June 13, 2012. Review Office found that the alternate duties of light sedentary work placing stickers on bags and the modified duties (pre-accident job with sit/stand stool) both met the criteria for suitable work. It noted that the pre-accident job duties involved assembling shipping boxes, packing bags into the box and placing the full box onto a pallet. Lifting/carrying full boxes weighing 20 to 30 pounds was occasional in frequency and an operator was available to help. Both alternate and modified duties took into account the worker's skills and capabilities. Review Office stated that it did not find the evidence to support the worker was medically unable to perform the work.

Review Office also found there was no change in the worker's left knee condition to suggest she was not capable of increasing her work hours. Review Office's decision was based on its review of medical reports on file from the treating physiotherapist, the rehabilitation and physical medicine specialist, the treating orthopedic surgeon, the June 29, 2012 WCB call-in examination and the July 27, 2012 MRI results.

On November 18, 2012, the WCB sports medicine consultant stated that based on the submitted job description, the worker would be physically capable of performing her pre-accident duties.

On July 2, 2013, the worker's representative asked Review Office to consider the following new information in relation to their previous decision dated October 5, 2012:

• report from the family physician dated March 11, 2013
• MRI report dated November 1, 2012
• Supreme Court of Canada decision pertaining to chronic pain

On August 22, 2013, Review Office advised the worker that the November 1, 2012 MRI report involved the lumbosacral spine and that this was not relevant to the compensable left knee injury and that no weight had been given to the report or its findings.

Review Office found that the worker's activities noted on surveillance video information supported her ability to work in some capacity. Review Office indicated that the surveillance information did not support the March 11, 2013 comments made by the treating physician that: "And in constant pain on clinical exam patient knee is stiff while standing from sitting position and trying to walk. She need (sic) support of her both arms to stand, then walk and a limp for five steps." Review Office concluded that the evidence did not support that the worker was medically unable to perform the alternate/modified duties provided by the employer or that there was a change to the worker's left knee condition to suggest that she was unable to increase her work hours. It found that the new evidence did not change the previous decision of October 5, 2012. On March 3, 2014, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was held on July 8, 2014.

Following the hearing, the appeal panel requested information from the accident employer concerning the worker's attendance records from June 14, 2012 onwards and the reported reasons for any shifts worked less than 4 hours. The requested information was later received from the employer and a copy was forwarded to the worker's representative for comment. On September 30, 2014, the panel met further to discuss the case and render its decision.

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(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 resulting from the accident ends.

The Worker’s Position

The worker was represented by an advocate at the hearing and the services of an interpreter were provided. The position advanced on behalf of the worker was that in denying entitlement to wage loss benefits after June 13, 2012, the WCB failed to acknowledge the lingering effects of chronic subjective pain which have judicial acknowledgement from the Supreme Court of Canada.

The worker's spouse appeared as a witness at the hearing. His evidence was that from the beginning, he assisted his wife with the processing of her WCB claim and the spouse described some of his interactions with WCB staff. There was particular concern regarding the call-in exam performed by a WCB doctor. The evidence was that while the worker and her spouse were in the office, the doctor told them her knee was off. Then when the doctor wrote his report, he took a totally different turn and wrote things which differed from what he said to them. They could not understand why the doctor did this and felt it was very unfair and insulting. The worker had the right to know what was going on.

It was also submitted that the worker had been treated in a discriminatory manner by both the WCB and the employer on the grounds of her ethnic origin. The worker's position was that the discontinuation of her wage loss benefits was tied together with the issues of discrimination. She was aware that people receive benefits when they get injured at work but could not understand why she did not.

In his formal submission, the worker's advocate referred to the Supreme Court of Canada case Nova Scotia (Workers Compensation Board) v. Martin [2003] SCC 54. It was submitted that the worker continued to have subjective complaints of left knee pain and that the reality of pain suffered by her did not differ from the chronic pain referred to in Martin. It was submitted that different workers feel pain in different ways because of unique circumstances, but this did not mean that the WCB could selectively deny the existence of chronic pain sufferers and use this to deny legal entitlement to benefits. As a chronic pain sufferer, the worker was entitled to equal protection of the law, section 15 of the Charter. The advocate asked that the worker be entitled to retroactive wage loss benefits due to the lingering effects of her pain.

Analysis

At the outset, the panel notes that at the hearing, the worker's advocate spent a considerable amount of time alleging that the worker was treated in a discriminatory manner by the WCB, the employer, and the Worker Advisor Office. As indicated at the hearing, the Appeal Commission treats all workers equally without discrimination in performing its task of determining entitlement to benefits under the Act. The Appeal Commission's job, however, is not to review how other individuals or agencies may have conducted themselves. Our jurisdiction is limited to determining entitlement under the Act. In making such determinations, the Appeal Commission acknowledges that it is required to carry out its mandate in a fair and just manner which does not contravene any of the protected rights under the Charter.

The panel also notes the worker's advocate made extensive reference to the Supreme Court of Canada decision in Martin. We are of the view that the Martin case is of no application to the present appeal. The issue in this case deals with causation and whether or not the worker's loss of earning capacity after June 13, 2012 can be causally linked back to the injury she suffered in the workplace accident of July 26, 2011. This will be a finding of fact to be made by the panel, and has nothing to do with the differential treatment and discrimination issues addressed in the Martin case. We reject the proposition that a determination that the worker is not entitled to benefits is automatically a violation of her section 15 equality rights. Determination of whether or not the worker is entitled to further benefits depends solely on a finding of fact, and does not involve any Charter challenge to the provisions of the Act.

The issue before the panel is stated to be: "Whether or not the worker is entitled to wage loss benefits after June 13, 2012." In order for the worker's appeal to succeed, the panel must find that the worker's compensable left knee injury caused her to suffer a loss of earning capacity beyond June 13, 2012. We are able to make this finding in part.

This case is complicated by the fact that in November 2011, the worker was involved in a motor vehicle accident which caused her to suffer injury to her neck, shoulder and back regions. As at May 9, 2012, the treating physical medicine and rehabilitation specialist reported that the worker's right arm and right low back continued to give her symptoms and that her left knee was recovering slowly. A subsequent report from the same physician dated June 26, 2012 indicated that while the knee symptoms were still the same, the worker complained of back and arm pains and that with increased back pains the worker would get nauseous and vomit. The recommendation was to delay the worker's return to full time work until she had more therapy for the neck/shoulder/back region. Based on the medical reports, the panel finds that the non-compensable injuries suffered in the motor vehicle accident were significant contributors to the worker's overall pain condition in June 2012 and were a major cause for her loss of earning capacity at that time. The challenge in this appeal, then, is determining to what extent the worker's loss of earning capacity was caused by her workplace left knee injury and how much was attributable to her non-compensable condition.

The worker's restrictions outlined by the treating physiotherapist on May 2, 2012 were as follows: "minimize stairs, no squatting, no ladders or kneeling." On June 29, 2012, the physiotherapist outlined the restrictions as: "minimize stairs, no kneeling, no prolonged standing, no squatting."

The modified duties provided by the employer to the worker as at June 13, 2012 involved taking a bunch of plastic bags off a conveyor, inspecting them, and then placing them in a box. The worker would be permitted to utilize a sit/stand stool while performing these duties and she would not be responsible for lifting the completed boxes. The panel finds that these duties fell within both the May 2 and June 29, 2012 restrictions set out above.

When reviewing the medical reports from the relevant time period, as noted earlier, the treating physical medicine and rehabilitation specialist was reporting that the left knee was slowly recovering but that the worker's neck/shoulder/back region was causing pain and required more therapy.

A note dated June 14, 2012 from the family physician indicated that the worker was reassessed that day with swollen knee and pain. The family physician recommended the worker continue at four hours of light duties for another two weeks.

Two weeks later, on June 29, 2012, the worker was examined by a WCB medical advisor at a call-in examination. He opined that the worker had an objectively stable left knee post-surgery, with stable ligamentous structures, no noted atrophy, no effusion, redness, swelling or bruising about the left knee area. There was full passive and active range of motion. It was felt that it would be reasonable for the worker to increase her functioning and conditioning and that she was capable of workplace accommodation on a full time basis.

In a medical note of the same date of June 29, 2012, the family physician indicated that the worker was seen "for medical reasons" and he recommended continuation of four hours of modified duties for another four to six weeks. Unlike in the previous note, the family physician did not reference the left knee as being the cause of the worker's need to reduce her work hours. Given the WCB medical advisor's finding that the worker's left knee was stable as of that date and the treating physical medicine and rehabilitation specialist's June 26, 2012 report of complaints regarding the neck/shoulder/back region, the panel finds that as of June 29, 2012, any inability to work full time hours at modified duties was caused by the worker's non-compensable condition, and not by her work-related left knee injury. We find that by June 29, 2012, the worker's left knee had improved to the point where she was capable of working the modified duties offered by the employer on a full time basis.

The panel acknowledges the concerns expressed by the worker and her spouse as to the call-in examination performed by the WCB medical advisor. We note, however, that his findings were similar to those reported by the treating surgeon a few weeks earlier. On June 8, 2012, the treating surgeon indicated that while the worker had some swelling outside the joint, the knee joint itself did not have any swelling and there was no limitation in the movements. Although there may have been some misunderstanding in communication between the worker, her spouse, and the WCB medical advisor, we find no reason to doubt his medical findings.

It is therefore the panel's decision that the worker is entitled to wage loss benefits up to and

including June 29, 2012. The worker's appeal is allowed in part.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 20th day of November, 2014