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 gradually resuming her regular duties by July 23,2014.  A hearing was held on March 19, 2015 to consider the matter.

Issue

Whether or not the worker was fit to gradually resume her regular duties on July 23, 2014.

Decision

That the worker was fit to gradually resume her regular duties on July 23, 2014.

Decision: Unanimous

Background

On September 11, 2013, the worker suffered a hyperextension injury to her right knee when she fell at work during the course of her employment as a healthcare aide. Her claim was initially accepted based on the diagnosis of a right knee sprain. Subsequently an MRI dated October 8, 2013, revealed high-grade tearing of the distal biceps femoris tendon, mild patellofemoral compartment osteoarthritis and a small joint effusion. On October 18, 2013, a WCB medical advisor noted that the distal biceps femoris tendon tear was likely consistent with the reported mechanism of injury and the tear was accepted as compensable. On November 13, 2013, surgery was recommended to repair the biceps tear.

On December 11, 2013, the worker was seen at the WCB for a call-in assessment. The medical advisor noted that the worker continued to report significant symptoms and functional limitations in relation to the tendon tear injury and the worker was not keen to proceed with a proposed surgery. It was reasonable to seek a second orthopedic opinion to determine whether or not there were any pre-existing conditions aside from the worker's unfavorable BMI. The medical advisor indicated that the worker required additional physiotherapy treatment and was capable of sedentary duties with specific work restrictions.

The worker saw a second orthopedic surgeon for assessment on December 20, 2013. The surgeon reported that the knee examination was consistent with the MRI described biceps tendon injury and that surgery was not indicated. The surgeon noted that the worker had more pain than he would have expected given the nature of the pathology. It was felt that the worker's knee discomfort would diminish with time and a further review would be held in six weeks time.

File information showed that the accident employer was able to accommodate the worker with light duties (11 hours per week) that consisted of answering phones, typing, reviewing and typing procedures.

On February 14, 2014, the treating orthopedic surgeon reported that the worker continued to complain of significant pain and ongoing disability. On March 11, 2014, a repeat MRI was carried out and was read as follows:

There is evidence of a tearing of the structures of the posterolateral aspect of the knee including the biceps femoris tendon, lateral collateral ligament and ligaments of the proximal tibiofibular joint. There is some persisting edema about the structures suggesting healing is not complete. No new abnormality is observed.

On March 14, 2014, the worker's file was reviewed by a WCB medical advisor as the case manager noted that the worker was only working 2 hours per day at light desk clerical duties on the advice of her treating physician. The medical advisor responded that based on the MRI findings, the worker should increase her hours and there would be no requirement to restrict work hours. The medical advisor indicated that home exercises and gradual normalization of activity would be appropriate.

In a March 21, 2014 report, the treating orthopedic surgeon commented that the worker was concerned that she would not be able to perform her normal duties because of ongoing discomfort in the lateral aspect of her knee. The surgeon thought that in one month's time, the worker could begin a progressive or graduated return to her normal type chores.

On April 2, 2014, the treating physiotherapist noted the worker had normal range of motion in her right knee, that structures (ligaments) felt solid and that strength was improving.

In a May 15, 2014 report, the treating physiotherapist reported that the worker was physically able to increase her work hours until she was back at full duties. The therapist indicated that the worker had improved and would continue to strengthen with time if she kept up with her exercises. The more she moved and used her leg, the better outcomes she would have.

On May 25, 2014, a WCB medical advisor stated:

In his March 21 14 report the OS noted improvements and advised "in one month's time she could begin a progressive or graduated return to her normal type chores." It is now two months since that report....a more recent PT report of May 15 14 noted continued improvements and advised return to full hours with temporary restrictions. These restrictions would be appropriate and could be reviewed after a period of 4-6 weeks."

On June 9, 2014, the treating physician reported that the worker had mild discomfort with prolonged standing.

On June 23, 2014, a WCB medical advisor opined that the need for workplace restrictions were no longer apparent. He indicated: "while there may be mild residual symptoms, progressing to full unrestricted duties would now be safe and appropriate."

In a letter dated July 23, 2014, the WCB advised the worker that after consultation with a WCB medical advisor, it was safe and appropriate for her to progressively return to her regular duties at her pre-accident hours of 11 hours per week. The decision was based on the nature of her injury, the time that passed (ten months post injury), the abilities noted in the discharge physiotherapy report, the nature of the job duties and the limited hours of work. On July 25, 2014, the worker requested Review Office to reconsider this decision.

On September 22, 2014, Review Office determined that the worker was fit to gradually resume her regular duties on July 23, 2014 based on the comments made by the treating surgeon dated February 14 and March 21, 2014; physiotherapy reports of April 2 and May 15, 2014, and the WCB medical opinions of March 14, May 25 and June 23, 2014. On September 24, 2014, the worker appealed Review Office's decision to the Appeal Commission and a 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 self-represented at the hearing. The worker described her 30 years of experience in the patient care field. She had worked as an LPN, a healthcare aide, and had operated her own homecare business. The worker stated that she was very aware of the ins and outs of patient care and safety.

When the worker fell at work on September 11, 2013, she described slipping on a wet floor that had just been washed. When she fell, her right leg hyperextend and she felt excruciating pain. It was later determined that she had suffered a 7 cm tear in an area which is rarely injured. She had been scheduled for surgery which she said she would have been happy to undergo, but due to the WCB refusing approval, the surgery was cancelled. By the time the worker went to see a second surgeon for another opinion, it was too late to perform surgery as scar tissue had formed. The injury would therefore have to heal on its own. The worker felt that this was what prolonged her recovery.

By July 23, 2014, the worker said that she felt she was ready to return to work at her regular duties but her doctor still imposed restrictions. The worker saw her doctor every two weeks and she felt that he knew what was required in order to keep both the worker and her residents safe. The worker's position was therefore that she was not fit to gradually resume her regular duties without restrictions as of July 23, 2014.

The worker also stated that she would have been fit to work with palliative care patients who did not require any lifting, but that the employer never called her to give her any shifts after July 23, 2014. The worker stated that even when her doctor removed all restrictions, she still never got any more shifts from the employer.

At the time of the hearing, the worker indicated that her right leg still hurt and she was not able to do stairs very well. She was, however, safe to work with the use of an IT band on her leg to stabilize it. The worker felt that she had always done what was asked of her by the WCB and was always up front with her claim.

Employer's Position

The employer was represented by an advocate and a manager of disability claims. They participated via teleconference. The employer agreed with the WCB decision that there was no objective evidence to substantiate the worker's inability to work 11 hours per week. The employer acknowledged the treating doctor's note of August 11, 2014 setting out restrictions, but submitted that little weight should be given to this opinion given the other medical evidence which gave no objective reason as to why the worker would not be able to gradually resume her regular duties as of July 23, 2014 and which showed no evidence of functional deficit. It was also noted that even if the worker did have a functional deficit, there was no link to the compensable injury as the worker had pre-existing osteoarthritis in her knee which could be the cause of any pain.

Analysis

The issue before the panel is whether or not the worker was fit to gradually resume her regular duties on July 23, 2014. In order to decide the appeal, the panel must consider the evidence regarding the worker’s post-accident condition and abilities and determine the worker's capabilities as of that date. After reviewing all of the evidence, the panel finds on a balance of probabilities that the worker was fit to gradually resume her regular duties on July 23, 2014.

At the hearing, the worker was asked to describe her pre-accident duties as a healthcare aide. The worker's evidence was that she was hired as a part-time employee assigned to two specific clients. She was to work Wednesdays and Thursdays for a total of 11 hours per week. On Wednesdays, she was to work with a client with Altzheimer's Disease. Her duties included walking the hallways with the client, helping with meals and feeding, and assisting with changing clothing as required. Due to her short tenure, the worker never had an opportunity to meet with her Thursday client. The worker's understanding was that this client was mobile with the use of a walker and was fairly independent. The worker also assisted some other clients as needed by sitting with the clients, preparing meals, some light housekeeping, and generally assisting in activities of daily living.

In the weeks and months leading up to July 23, 2014, several medical reports indicate that the worker's condition and functional ability was improving. On March 21, 2014, the orthopedic surgeon felt that in one month's time, the worker could begin a progressive or graduated return to her normal type chores. By May 15, 2014, the treating physiotherapist indicated that the worker would be physically able to increase her work hours with a gradual return to full work hours with restrictions of no lifting more than 15 lbs floor to shoulder height, sitting/standing as required by employment with ability to change position and stairs limited to 5 steps at a time. The physiotherapist felt that by the end of May 2014 the worker would be able to handle a full staircase. In an opinion dated June 23, 2014, the WCB medical advisor noted that it was at that point over nine months post soft tissue injury and he stated that while there may be mild residual symptoms, progressing to full unrestricted duties would be safe and appropriate.

At the hearing, the panel was provided with a copy of an employer's return to work form which was completed by the attending doctor on July 9, 2014. In it, the doctor's recommendation was that the worker was capable of returning to work with restrictions. Modified hours were recommended due to weakness of the right leg and poor balance. The following capabilities were noted:

• walking short distance
• standing less than 30 minutes
• sitting as tolerated
• lifting floor to waist 10 kg or less
• short flights of stairs
• ladder climbing of 2-3 steps only
• ability to use hands to hold objects, grip and type/write

Limitations were noted with respect to bending or twisting of the right knee and repetitive movement of the right knee. Comments were that: "Patient has been showing improvement in strength. She has been given some balancing exercises." A complete recovery was expected and the estimated duration of limitations was 6-8 weeks.

In the panel's opinion, even with the restrictions set out in the July 9, 2014 return to work form, the worker could have commenced a gradual return to her regular duties. In considering the issue, the panel considered a graduated return to work both in terms of hours (gradually increasing to her pre-accident hours of 11 hours per week) and duties (modifying the way she performed her duties until she achieved her anticipated complete recovery). We find that the worker's regular duties involved minimal bending/twisting or repetitive movement of the right knee. While the worker's walking tolerances were limited, her work could have been modified to allow her periods of rest for her knee. For example, the worker indicated that at times, she could be seated while watching her client walk. While this may not be the ideal manner in which to perform her job, the panel finds that this would have been a reasonable way to gradually resume her regular duties.

It would appear that the return to work issue came to a head on July 23, 2014 during a meeting between the worker, the employer and the WCB. At that time, the worker was told by the WCB claims manager that while her ongoing symptoms were acknowledged, it was felt that she could progress to unrestricted duties. The worker was adamant that she still required restrictions as recommended by her doctor and demonstrated an unwillingness to commence a gradual return to her regular duties. It was at that point that the employer no longer offered alternate duties as an office assistant and the worker no longer worked any shifts for the employer. The worker's evidence at the hearing was that after July 23, 2014, the employer no longer offered her any shifts. Unfortunately, the availability of work after July 23, 2014 is not an issue which the panel can address. All we can look at is the worker's functional ability to commence a graduated return to work as of July 23, 2014 and as outlined above, we find that she could.

The panel therefore finds that the worker was fit to gradually resume her regular duties on July 23, 2014. 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 2nd day of April, 2015