The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing two decisions made by the Workers Compensation Board ("WCB") that the worker was entitled to temporary total disability benefits and vocational rehabilitation services with respect to his left knee injury.  A hearing was held on March 26, 2015 to consider these matters.

Issue

Whether or not the worker is entitled to temporary total disability benefits effective April 13, 2014; and

 Whether or not the worker is entitled to vocational rehabilitation services.

Decision

That the worker is not entitled to temporary total disability benefits effective April 13, 2014; and

 That the worker is not entitled to vocational rehabilitation services.

Decision: Unanimous

Background

The worker suffered a work-related injury to his left knee on July 8, 1977. His claim for compensation was accepted and benefits were paid for a two week period. In October 1997, the worker suffered a recurrence of left knee pain and on December 5, 1977, a left knee meniscectomy was performed. On August 8, 2006, the worker underwent a total knee replacement which was accepted as a WCB responsibility.

In April 2014, the worker advised the WCB that he was experiencing increased left knee symptoms which caused him to quit his job as a stage hand and therefore he was requesting wage loss and vocational rehabilitation benefits.

In a decision dated April 29, 2014, the WCB advised the worker that a loss of earning capacity had not been shown to exist as a result of the 1977 work injury and therefore he was not entitled to WCB wage loss benefits. The WCB's position was that the worker left his current employment due to employer/employee labour relations which would not be related to his left knee injury.

The case manager also noted in the decision that file documentation showed that the worker left the accident employer shortly after his 1977 workplace injury. She noted that the accident employer had an established return to work program and that they had consistently accommodated their workers with appropriate work duties that met their restrictions as a result of a work injury. As the worker removed himself from the accident employer's employment, there was no entitlement to vocational rehabilitation services.

On July 4, 2014, a worker advisor asked the WCB to reconsider its decision dated April 29, 2014. The worker advisor submitted that the worker was entitled to wage loss benefits as the evidence supported that his current loss of earning capacity was directly related to his compensable knee injury. While it may have appeared that the worker quit his job due to interpersonal conflict, the worker advisor noted that the worker's employment as a stagehand had already been unsustainable because the associated work duties were incompatible with the WCB-imposed restrictions.

The worker advisor referred to file information to support that the worker was entitled to vocational rehabilitation benefits. In the event that the WCB decided that further wage loss benefits and vocational rehabilitation services would not be extended, the worker advisor indicated that consideration should be given to preventive vocational rehabilitation.

In a second decision dated August 11, 2014, the WCB confirmed that the worker was not entitled to total temporary disability benefits, vocational rehabilitation services or preventive rehabilitation services. The case manager's decision was based on the following factors:

• claim information supported that the worker did not return to the accident employer after his work injury.
• on January 9, 2006, the worker advised his case manager that he wished to continue pursuit of employment as a stage hand and at that time the worker was aware that this could prevent him from further entitlement to vocational rehabilitation services.
• on May 17, 2006, the worker advised the WCB that he would work 60 hours a week and was subject to periodic lay-offs. The worker noted that despite the difficulties he was having with his knee, he was working and that his long-range plan was to continue working in this line of work indefinitely.
• a functional capacity evaluation performed in June 2006 showed that the worker was able to complete all test activities. The worker did not report any significant symptoms in his knee following the evaluation. While there was limitation noted and restrictions were recommended, the claim information supported that the worker had continued in the same position for 30 years.
• in June 2006, the worker discussed the acceptance of WCB responsibility for the costs of his upcoming knee arthroplasty. At this time, wage loss benefits were provided to the worker as the need for surgery was work-related. A referral for vocational rehabilitation was also discussed.
• on June 26, 2006, the worker met with vocational rehabilitation services for early intervention and the claim information noted the worker's intent to return to his pre-surgery line of work as a stage hand.
• in September 2006, a case manager advised the worker that a return to pre-surgery work duties may not be viable. The worker indicated that he would continue to look in that direction and that further review would occur after he had completed his recovery post surgery.
• January 3, 2007, the worker provided his case manager with an update and again indicated his thoughts and intentions that a return to his pre-surgery work duties would be possible.
• in October 2007, the worker advised the WCB that he would be returning to work duties October 4, 2007 in a modified capacity.
• medical report of November 7, 2008: "knee is doing well. He has range of motion 0 degrees to 110 degrees with good alignment and stability. X-rays demonstrate his implants to be well positioned without evidence of complication."
• medical report of November 28, 2008: "at his one year visit in September 2007, it was noted he had regained an excellent range of motion with good alignment and stability of his knee. At that time he wished to return to his full-time job. It was noted that he had a fairly bang up job in the entertainment industry, but it was felt that he could cope with this given the excellent result he had following his knee replacement surgery."
• medical report of December 6, 2012 in which his surgeon noted: "his knee continues to do well. He does have some issues with work, however, and that he has a fairly demanding job that requires him going up and down ladders and frequent kneeling and squatting and has found that this precipitates burning anterior knee pain which is transient." "...he has an excellent pain free range of motion 0 degrees to 120 degrees with good alignment and stability. X-rays demonstrate his implants to be in excellent position without evidence of complication. [Worker] is doing very well following his left knee replacement."
• the worker's permanent partial disability ("PPD") rating was initially 5% and follow up assessment showed that his left knee status had improved with a rating of 4.6%. Then on third assessment a PPD rating of 2.6% was awarded.
• claim information showed that the worker was able to continue in the same employment but that he recently contacted the WCB advising he had left his current employment of thirty plus years as a result of employer/employee labour relations. As such any wage loss incurred would not be related to the July 8, 1977 accident.

The case manager concluded by stating that the accident employer had a supportive history of being able to accommodate their workers when temporary or permanent restrictions are recommended. Although initial vocational rehabilitation services had begun, the worker obtained a different position with a different employer removing himself from the employer's ability to accommodate as well as removing himself from entitlement to vocational rehabilitation services. The case manager indicated that there was no entitlement to preventive vocational rehabilitation services as the criteria for preventive vocational rehabilitation services had not been met.

On August 15, 2014, the worker advisor wrote Review Office asking that they reconsider the case manager's decisions dated April 29 and August 11, 2014. On October 1, 2014, the accident employer's representative submitted to Review Office that there was no basis to change the adjudicative decisions of April 29 and August 11, 2014.

On November 14, 2014, Review Office determined that the worker was entitled to temporary total disability benefits effective April 13, 2014. Review Office noted that the worker's pre-accident position as a refuse helper with the accident employer was outside of the worker's permanent restrictions and when approached in 2006, the accident employer indicated they would not re-employ the worker. Review Office found that the alternate duties of a stage hand were not within the worker's restrictions and that the worker was able to modify his work and pick up jobs that were within his capabilities.

Review Office referred to file information to support that the worker made contact on several occasions to advise the WCB of his difficulties following his total knee replacement surgery in 2006 and his return to work as a stage hand in October 2007.

Review Office referred to file evidence to support that the work duties of a stage hand often required heavy work in the set up/take down of shows and lighter tasks were not always available. Review Office referred to medical opinions dated December 2012 and March 2013 to support that the worker's job duties of a stage hand were inappropriate given the status of his knee condition and that the worker had a loss of earnings due to disability from the July 1977 accident.

Review Office determined that the worker was not entitled to preventive vocational rehabilitation benefits but he did qualify for vocational rehabilitation benefits. Review Office indicated that there was no file evidence to support the employer's position that if the worker had continued to work for them, they would have been able to accommodate the worker with suitable alternate job duties. In 2006, the employer was approached regarding their ability to accommodate the worker and indicated "re-employment...is not an option." At this point in time, the WCB authorized vocational rehabilitation services and an initial assessment was conducted on July 13, 2006. The vocational rehabilitation process was then put on hold as the worker underwent the total knee replacement surgery. The vocational rehabilitation process did not resume as the worker chose to resume his work as a stage hand.

Review Office concluded that the worker was not able to perform his pre-injury or alternate job duties as a stage hand and that the condition of his knee was likely to deteriorate and limit his employment opportunities. The worker therefore had a long-term loss of earning capacity and was entitled to vocational rehabilitation services and benefits.

On November 25, 2011, the accident employer appealed Review Office's decision of November 25, 2014 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.

As the worker was injured in 1977, his benefits are assessed under the Act as it existed at that time. In 1977, subsection 4(1) of the Act provided that where personal injury by accident arising out of and in the course of employment was caused to a worker, compensation would be paid.

Section 24(16) provided for vocational training as follows:

24(16) The board may provide for any injured workman, who earning capacity in his previous occupation has been permanently impaired by the injury, such vocational training as may be deemed advisable for the purpose of preparing the injured workman for another occupation to which he may seem adapted and which is likely to increase his future earning capacity; and to that end the board may contract with an institution or institutions furnishing such vocational training, and may adopt rules and regulations for that purpose and for the payment of training.

WCB Policy 43.00, Vocational Rehabilitation (the “Policy”) explains the goals and describes the terms and conditions of academic, vocational and rehabilitative assistance available to a worker. The Policy states that: “Vocational rehabilitation is intended to help a worker achieve maximum physical, psychological, economic and social recovery from the effects of a work-related injury or illness.” It also provides: “While discretionary, vocational rehabilitation should be consistently applied to all eligible workers.”

Employer's position:

The employer was represented by its compensation coordinator. It was submitted that the worker's cessation of employment and related loss of earning capacity on April 12, 2014 was not a consequence of his compensable knee condition but rather was attributable to perceived favoritism complained about by the worker. It was acknowledged that there were medical opinions as well as recommended limitations which suggested that the requirements of physical the stage hand position were outside of the worker's restrictions. Notwithstanding, however, the worker had contradicted the professional opinions by working in the stage hand profession for seven years post-replacement surgery. Not only had he worked for seven years, he had also on a number of occasions worked 70-80 hours per week. According to the file information, during the week in which he resigned, the worker worked 77 hours. Further, despite the worker's contention that he was assigned duties that were aggravating his knee condition, the worker did not seek any medical attention during the five year period from 2009 to 2014 with the exception being a routine follow-up appointment on December 6, 2012 with the orthopedic surgeon who performed the knee replacement.

Overall, it was submitted that the evidence suggested that the worker's decision to resign on April 12, 2014 was the culmination of many years of perceived favoritism. If the panel were to accept that the loss of earning capacity was unrelated to the compensable knee condition, then there would be no entitlement to vocational rehabilitation services. Alternatively, if the panel were to find that the loss of earning capacity was a consequence of the compensable knee condition, it was submitted that had the worker not voluntarily left the employ of the accident employer, there would be no wage loss as the worker would have been accommodated.

Worker’s position:

The worker participated in the hearing via teleconference and was assisted by a worker advisor who appeared in person. It was submitted that the worker was entitled to temporary total disability benefits because the evidence supported that his compensable left knee injury was responsible for his current loss of earning capacity. In addition, it was submitted that the worker was entitled to vocational rehabilitation services because his compensable knee injury required restrictions which were incompatible with the physical demands of both his pre-accident job as a refuse worker, and that of a stage hand.

With respect to the ability of the accident employer to offer accommodation, it was noted that the evidence of what actually transpired in 1978 was uncertain and in any event, regardless of how the worker left the employ of the accident employer, it would be unfair and unreasonable for the WCB to deny benefits indefinitely based on a decision made by a youthful seasonal worker decades prior to the recurrence of his disability. Overall, there was inadequate evidence to support a conclusion that the worker's current disability would have been mitigated by the accident employer's current practice of accommodation.

Following the knee replacement surgery, while the initial return to work went well, it was submitted that working as a stage hand became unsustainable when the worker's knee became symptomatic once again. The worker expressed concerns to his orthopedic surgeon and the WCB about the need to change jobs. A WCB medical advisor agreed with these concerns and concluded that it was unlikely the worker could continue to safely perform his workplace duties at the intensity and duration required. It would not be unexpected for left knee function to deteriorate and a repeat arthroplasty would likely be needed at some point in the future. Based on a functional capacity evaluation, restrictions were recommended.

It was submitted that the restrictions were clearly incompatible with the regular work demands of a stage hand and that accommodation in the trade was not possible. The worker had made efforts to find alternate work on his own but had been unsuccessful. With no other options, the worker continued to work as a stage hand, but ended up quitting four months later. The worker's complaints about the industry illustrated the worker's prolonged struggle to continue working with a disability in a trade where weakness was not tolerated.

Overall, it was submitted that the worker struggled for over a year to perform the essential duties of his job and his informal attempts at accommodation were unsuccessful. It was recognized by the WCB that the physical demands of the work were outside the restrictions made necessary as a result of the compensable injury. The worker continued to search for employment within his skills and abilities, but had been unsuccessful because his compensable restrictions and limited transferrable skills constrained his employability in the general labour market. It was submitted that he was entitled to VR services and support from the WCB to assist in his efforts to recover his lost earning capacity.

Even if the panel were to accept that the worker's disability as of April 2014 was not directly related to his compensable injury, it was submitted he would still be entitled to wage loss benefits and vocational rehabilitation services because his replaced knee joint had limited life expectancy, which had likely been significantly reduced because of the physical demands and long hours of the worker's trade. It was inevitable that the worker would have had to discontinue his work as a result of his compensable injury and that he would have been entitled to wage loss benefits.

The panel was asked to deny both the employer's appeals on the basis the evidence supported that, on a balance of probabilities, the worker's current disability was a direct result of his compensable left knee injury. The WCB medical advisor and the treating orthopedic surgeon provided restrictions that were clearly incompatible with the job demands of a stage hand, as well as a refuse worker. It was submitted that the worker was entitled to wage loss benefits because his compensable injury precluded a return to his previous work, and he was entitled to vocational rehabilitation services because he required assistance in securing employment within his compensable restrictions.

Analysis:

There are two issues before the panel. The first issue is whether or not the worker is entitled to temporary total disability benefits effective April 13, 2014. In order for the employer's appeal on this issue to succeed, the panel must find that the worker's loss of earning capacity as of that date was not attributable to the effects of his compensable injury. On a balance of probabilities, we are able to make that finding.

In this case, there is no question that the worker's compensable injury is significant and as a result of his left knee arthroplasty, he is left with permanent restrictions. The permanent restrictions outlined by the WCB were as follows:

• no prolonged standing
• no walking greater than 20 minutes without the ability to rest
• no repetitive stair climbing particularly under load
• no crawling/kneeling on left knee
• no repetitive lift greater than 60 lbs
• no carry greater than 40 lbs for less than 33% of the day and 20 lbs for 34-66% of the day
• no push/pull greater than 65 lbs/30 lbs for less than 33% of the day and 30 lbs/15 lbs for 34-66% of the day
• no repetitive ladder climbing

These restrictions would appear to be incompatible with the worker's job duties as a stage hand but nevertheless, he was able to maintain regular employment in this profession for 7 years. It is notable that the work of a stage hand is cyclical, and the worker described having to work 70-80 hour weeks near the beginning of a cycle when a set was being constructed. The worker's evidence was that if you could not do the work, you would not get calls for jobs. It would appear that the worker was regularly called in for jobs and the panel must therefore conclude that he was capable of satisfactorily performing all the work of a stage hand.

The worker's submission asserts that in the months leading up to April 2014, he was struggling to keep up and that left knee symptoms were making his ability to work as a stage hand unsustainable. After considering the evidence as a whole, the panel is not satisfied on a balance of probabilities that the effects of the compensable injury precluded the worker from performing the duties of a stage hand effective April 13, 2014. Importantly, there is little medical information to support increasing symptomatology or decreasing function during that time period. There is no record of medical appointments to seek attention for increasing symptoms, nor is there a history of time missed from work. When the worker was seen by his orthopedic surgeon on July 3, 2014, this appointment was for a regularly scheduled follow-up and there was no indication of any deterioration of the knee. The surgeon reported that the knee continued to do well with good alignment and stability. X-rays demonstrated the implants to be in an excellent position without evidence of complication.

In the first weeks of April 2014, the worker was performing 70-80 hours per week with no record of knee complaints in a job which required full participation in all duties as assigned. A Labour Board complaint signed by the worker on April 14, 2014 identified issues with ongoing harassment and bullying over a ten year period and being overlooked for a temporary position for the period March 31, 2014 to April 5, 2014 due to preferential treatment being given to a junior member in violation of the collective agreement. The complaint made no reference whatsoever to any physical or functional limitations on the part of the worker caused by his compensable injury or any accommodation issues. When asked at the hearing about the nature of the harassment, the worker referenced being given menial work such as sweeping and mopping. The worker also spoke about being told to just go and stand by a ladder. The worker felt that this work was degrading as it was not consistent with his experience and abilities. The panel notes that these tasks would not be outside of the worker's restrictions.

Overall, it would appear that the reason for the worker's exit from the workforce effective April 13, 2014 was not the effects of the compensable injury, but rather was related to longstanding interpersonal issues at work, as outlined in the Labour Board complaint. The evidence simply does not reflect left knee complaints as being the cause of the worker's resignation. When considering the worker's functional ability to work as a stage hand on April 13, 2014, it would be difficult to conclude that he was prevented from doing so on account of left knee symptomatology. We are unable to find that the cause of the worker's loss of earning capacity was the effects of the compensable injury. For that reason, the panel finds that the worker is not entitled to temporary total disability benefits effective April 13, 2014. The employer's appeal on this issue is allowed.

The second issue before the panel is whether or not the worker is entitled to vocational rehabilitation services. Given the panel's findings that there is no compensable loss of earning capacity, it follows that there is no entitlement to vocational rehabilitation services. The panel has considered the worker advisor's submission that vocational rehabilitation services should be provided because the worker's replaced knee joint had limited life expectancy and that it was inevitable that the worker would have had to discontinue his work as a result of his compensable injury. First, the panel does not agree that it was inevitable that the worker would have had to discontinue his work as a result of his compensable injury. He had already demonstrated an ability to working in the profession for seven years without deterioration of his implant, and at age 60, he would be within five years of usual retirement age. It is not known whether or not the worker would have had to discontinue employment as a stage hand prior to his retirement date.

The panel also notes that entitlement to vocational rehabilitation services is discretionary. Although vocational rehabilitation was offered to the worker after his knee replacement surgery in 2006, these benefits were declined by the worker who preferred to remain in his chosen profession. Subsequently, the worker was able to successfully function in that profession for the next seven years. As outlined above, at the time of his resignation, there was little medical evidence to support any deterioration in his condition. Were it not for the interpersonal issues, the worker could have continued as a stage hand. The panel finds that it is not open to the worker to now opt for vocational rehabilitation services just because he is no longer employed due to non-compensable reasons. The worker was previously advised in January 2006 that he may be prevented from further entitlement to vocational rehabilitation services should he pursue a return to work as a stage hand. Unfortunately, the panel finds that this is the case and we conclude that the worker is not entitled to vocational rehabilitation services. The employer's appeal on this issue is allowed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 2nd day of April, 2015