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 not entitled to further wage loss benefits beyond February 8, 2011 with respect to his compensable claim. A hearing was held on January 21, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after February 8, 2011.

Decision

That the worker is not entitled to wage loss benefits after February 8, 2011.

Decision: Unanimous

Background

In March 2005, the worker suffered injuries to both feet, legs and wrist in a work-related accident. The compensable diagnoses were a right acromio-clavicular tear, fractures of the right tibial plateau, left distal fibula and triquetrum. File records showed that the worker's injuries precluded him from returning to his pre-accident employment as a roofer and he was provided with vocational rehabilitation benefits and services based on the occupational goal of Truck Driver, National Occupation Classification ("NOC") 7411. By August 2009, the WCB determined that the worker was competitively employable in NOC 7411 with an earning capacity of $497.27 per week.

In November 2009, the worker asked the WCB to pay for a waiver so he could cross the border to work as a truck driver. The worker's request for a waiver was granted by a WCB case manager.

In a memo dated July 2010, the WCB case manager documented that the worker had to stop working as a truck driver due to ongoing problems with his knee. The worker was then placed on full wage loss benefits retroactive to July 15, 2010.

Medical information showed that the worker saw his family physician on July 20, 2010 for right knee complaints and that the physician referred the worker to an orthopedic surgeon.

On March 21, 2011, the treating orthopedic surgeon reported that the worker complained of generalized right knee, hip and back pain and an MRI examination was ordered.

In May 2011, the worker advised the WCB that his employer may have work for him in the next week or two as a truck driver and he requested that the WCB pay for some MPI fines. On May 26, 2011, a WCB case manager advised the worker that the WCB would not pay for the recent MPI fines as it had done in the past, as the fines had no bearing on decisions nor to his entitlement to benefits.

On May 17, 2011, the worker's right knee MRI read as follows:

1. Proximal tibial hardware limits assessment. Deficient posterior horn lateral meniscus possibly related to a prior partial meniscectomy.

2. Osteoarthritis especially of the lateral femoral tibial compartment where it is moderately severe.

3. Intact ACL graft.

On June 7, 2011, the worker advised the WCB that he had to turn down a second job as he had no ability to pay the MPI fines.

On June 24, 2011, a WCB sports medicine advisor noted that the May 17, 2011 MRI identified degenerative changes at the right knee and this would be considered a traumatic arthritis in light of the worker's prior injuries. It was felt the clinical information did not indicate total disability and no changes were needed with respect to the worker's permanent restrictions.

After reviewing surveillance videotape of the worker conducted in May 2011, the WCB sports medicine advisor stated on July 16, 2011 that the worker was not totally disabled.

On July 21, 2011, the worker was advised that after a review of his claim, the WCB felt he was not totally disabled. The case manager's decision was based on surveillance evidence and the WCB medical opinion outlined on July 16, 2011. The case manager also confirmed that the WCB would not pay for the worker's MPI fines. On October 31, 2011, the worker appealed the case manager's decision to Review Office.

On December 14, 2011, Review Office outlined the opinion that the medical information on file did not support the worker's contention that he was physically incapable of returning to work as a truck driver and therefore the decision to deny full wage loss benefits beyond July 28, 2011 was upheld. Review Office outlined the view that the medical information on file did suggest that a number of non-compensable factors were preventing the worker from securing employment as a truck driver and that in May and June 2011, the worker informed the WCB that the only factor preventing him from returning to trucking was the fact that he had a number of unpaid fines due to motor vehicle violations which occurred in the latter part of 2010. On November 23, 2014, 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.

The worker has an accepted claim arising from a workplace accident in which he sustained a right acromio-clavicular tear and fractures of the right tibial plateau, left distal fibula and triquetrum. He is receiving partial wage loss benefits but is seeking full wage loss benefits beyond July 28, 2011.

The following provisions of the Act are applicable to this appeal:

• 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 27(20) which provides that the WCB may provide academic, vocational training, or rehabilitation for an injured worker.

Applicable WCB policies include:

• Policy 43.00, Vocational Rehabilitation, which describes the terms and conditions of academic, vocational and rehabilitative assistance available to injured workers.
• Policy 44.80.30.20, Deemed Earning Capacity, which describes when a worker will be deemed capable of earning an amount that he is not actually earning and how the deemed earning capacity will be determined.
• Policy 44.80.30.10, Establishing Post-Accident Capacity, which describes the methods that will be used to calculate a worker's post-accident earning capacity.

Worker's Position

The worker was self-represented. At the commencement of the hearing, the worker provided the panel with copies of medical reports from his family physician and a letter from his most recent employer.

The worker advised that he participated in the WCB's vocational rehabilitation plan which was focused on the occupation of truck driver. He acknowledged that he obtained his Class 1 drivers license. He said that he had difficulty getting a job as a truck driver. This was due to physical restrictions and his driving record. He advised that when he was able to find employment, his right knee would swell up causing significant pain and resulting in missing work and losing the job. He was not able to keep a full-time job.

The worker noted a particular incident which he said caused him to believe that he is not fit to drive a truck. He said that while driving a large truck, a pedestrian walked in front of him causing him to slam the brakes on with all his weight using both feet and that he just missed hitting the pedestrian. This resulted in him re-injuring his right knee.

Regarding his medical condition, the worker said that he is not physically able to drive a truck. He said his right knee swells and the other injuries from the accident, such as his left ankle and lower back, which has a pinched nerve, are painful and prevent him from driving. He also advised that clutching hurts his left ankle and that he has a problem getting in and out of a truck. The worker advised that he started using a cane about 3 weeks prior to the hearing due to problems with his knee. He uses it on a preventive basis, for example when stepping on or off a curb. He noted that his family physician has been supportive of the position that he cannot drive a truck.

The worker provided a letter dated January 15, 2015 from his last employer. The letter indicates that the worker "was not able to handle physical work." The employer advised that the worker made them aware of problems with his back and legs and "Because of these problems we did not have full time employment for [worker]."

The worker advised that, in addition to truck driving, he has worked on farms but found the work to be physically demanding. He noted that he was injured in an accident at a dairy farm.

The worker said that he is not totally disabled but believes that he is currently up to 70% disabled as a result of the workplace accident. He said that pin to pin driving would be perfect for him.

In reply to questions about finding employment, the worker said that he is not currently looking for work. He advised that at one point he distributed 30 to 40 resumes in his home town but he received no response. He does not think he can find a job in his home town. He also advised that he resides in a rural area about 12 miles from the nearest town and does not have a driver's license so is unable to drive to the town or to a bigger centre to look for work.

Regarding work as a truck driver, in addition to medical concerns, he cannot look for a driving job because he does not have a valid driver's license and cannot drive a vehicle. He said he lost his license and cannot afford to pay the fines/charges to get it back.

The worker said that the WCB decision to deem him at the full-time truck driver rate, results in him receiving biweekly partial wage loss of payment of $28.00.

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker is seeking reinstatement of full wage loss benefits after July 28, 2011. For the worker's appeal to be approved, the panel must find that the worker was not physically able to perform the duties of a truck driver at that time. The panel is not able to make this finding.

In examining the file, the panel finds that the main impediment to the worker continuing as a truck driver was related to his driver's license. The panel notes numerous references on the file to issues surrounding his loss of license and payment of fines relating to his license. The panel notes that in May and June 2011, the worker declined jobs as a truck driver because of issues with his license.

The worker advised the panel that his inability to drive was related to his medical condition. However, our review of the medical evidence in 2011 indicates that the worker was not totally disabled at that time. The panel finds that the worker's medical condition did not prevent him from working as a truck driver in 2011 and that subsequent medical information does not support his position that he cannot drive a truck as evidenced by the following considerations.

On March 21, 2011, the worker's orthopedic surgeon provided a note indicating that the worker complained of generalized right knee, hip and back pain. The orthopedic surgeon noted that the worker had full range of motion and no effusion. He recommended an MRI be performed.

The MRI dated May 17, 2011 demonstrated severe osteoarthritis in the lateral femoral tibial compartment, a deficient posterior horn of the lateral meniscus, and an intact ACL graft.

The worker's file was reviewed by a WCB medical advisor on June 24, 2011. The medical advisor concluded that "The current clinical information does not indicate total disability. There are no changes to the permanent restrictions outlined by the WCB medical advisor in a September 24, 2009 memo." These restrictions included:

• no lifting greater than 20 lbs
• no repetitive or sustained squatting, kneeling, crawling
• no ladder climbing as part of his work
• no work at heights
• no repetitive movements of the right leg against force
• no pivoting, jumping as part of work

The WCB medical advisor reviewed the file again on November 23, 2012 after receipt of a report from the family physician. The medical advisor was asked for her opinion on whether the medical findings on file support that the worker is totally disabled. The medical advisor opined that "Total disability is not demonstrated by the clinical findings in the Oct. 30/12 physician reporting or by the May 17/11 MRI findings." She also opined that "A medical indication to change the current permanent restrictions is not demonstrated."

The worker was seen by his orthopedic surgeon on December 18, 2012. At that time the orthopedic surgeon noted that the worker complained of a sore knee. The orthopedic surgeon reported no instability and full range of motion of the worker's knee.

The WCB medical advisor again reviewed the worker's file on March 13, 2013. The medical advisor indicated there was no change to the compensable diagnosis and advised that "In light of the favorable orthopedic examination findings of Dec. 17/12 (full ROM and normal stability) the current restrictions on file should be continued with no changes."

In conclusion, the panel finds, on a balance of probabilities, and based on the current medical information, the worker is medically fit to work as a truck driver, provided no tarping is required. The panel notes this occupation was supported by the worker's family physician. The panel finds that the WCB decision to retrain the worker to work as a truck driver was reasonable and in accordance with the Vocational Rehabilitation Policy. It also finds that the decision to deem the worker as capable of earning a truck driver's income was appropriate and in accordance with WCB policies on deeming and post accident earnings.

The panel notes that the worker's family physician has suggested that if his knee condition continues to deteriorate, a total knee replacement should be considered. The panel also notes that the worker was recently seen by the treating orthopedic surgeon. Should there be a significant change in the worker's compensable diagnosis requiring either additional medical treatment or a change in compensable restrictions; he should advise his designated contact at the WCB.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 29th day of January, 2015