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 returning to his pre-accident line of work with respect to his compensable left knee condition. A hearing was held on May 4, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after June 10, 2014.

Decision

That the worker is not entitled to wage loss benefits after June 10, 2014.

Decision: Unanimous

Background

On March 27, 2012, the worker reported that he and some co-workers were moving glass on some rollers when the cart and glass fell and struck his left knee. The worker said he felt a pop in his knee and banged his head on the floor. The claim for compensation was accepted based on the diagnosis of a left knee injury, right calf and neck lacerations and head trauma. On May 15, 2012, a left knee MRI revealed:

1. Tears of both menisci.

2. Full thickness tear of the proximal portion of the tibial collateral ligament (high grade sprain).

3. Osteoarthritic chondral loss in the patellofemoral and medial compartments.

4. Small joint effusion with intraarticular bodies in the popliteus recess.

On July 13, 2012, the worker was seen by an orthopedic surgeon regarding his left knee condition and on July 26, 2012, the worker underwent partial medial and partial lateral meniscectomies, patellar chondroplasty and partial synovectomy.

A WCB medical advisor reviewed the May 15, 2012 MRI and the operative report of July 26, 2012 and stated:

The MRI describes osteoarthritic chondral loss in the patellofemoral and medial compartments. In the operative report...the attending surgeon, described grade 2 and grade 3 patellar chondromalacia and grade 1 femoral chondromalacia on the medial side. A grade 2 and grade 3 patellar chondromalacia and grade 1 femoral chondromalacia are pre-existing conditions.

It is likely that the grade 2 and grade 3 patellar chondromalacia is a significant pre-existing condition that would likely delay the recovery phase.

File records showed that the worker was referred for a second opinion regarding his left knee condition which led to WCB approved left knee surgery on February 14, 2013. The surgery entailed a left knee medial collateral ligament repair and plication.

By June 2013, the worker was considered capable of returning to work on a graduated basis with temporary work restrictions for a two month period. File records showed that the accident employer was unable to accommodate the worker with employment.

On February 25, 2014, the worker's case was considered by Review Office based on an appeal put forward by the worker regarding the WCB's decision that he was not entitled to wage loss benefits after August 23, 2013. Review Office ultimately confirmed that the worker was entitled to wage loss benefits after August 23, 2013.

On April 25, 2014, the worker was seen at the WCB offices for a call-in assessment. The examining medical advisor indicated that the current diagnosis related to the compensable injury was post left knee medial collateral ligament repair and partial left knee medial and lateral meniscectomies. The medical advisor stated there was no need for work restrictions and recommendations were made for the worker to begin a graduated return to work program starting at 4 hours per day, increasing by one hour per week and that a reconditioning program was warranted given the worker's time away from the workforce.

On May 13, 2014, the worker was advised that his 4 week reconditioning program should be completed by June 9, 2014 and that full wage loss benefits would be paid to that date inclusive and final. Effective June 10, 2014, the WCB's opinion was that he had recovered from the effects of his March 27, 2012 workplace accident and no further responsibility would be accepted for his claim beyond June 9, 2014.

On July 2, 2014, the worker filed an appeal with Review Office stating that he should be retrained to find other employment as he did not have a job to return to.

On September 23, 2014, Review Office determined that the worker was not entitled to wage loss benefits beyond June 10, 2014 and also denied his request for retraining. Review Office concluded that the worker was employable in his pre-accident line of work based on the results of his recent reconditioning program and found that he did not have a loss of earning capacity beyond June 10, 2014 in relation to his compensable left knee injury. On October 7, 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.

The worker has an accepted claim for an injury arising from a March 27, 2012 accident. He is seeking wage loss benefits after June 10, 2014.

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. Subsection 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Worker's Position

The worker was self-represented. He said that he was injured in a freak accident when he and his co-workers were moving a large sheet of glass. The glass fell and struck him in the knee and elsewhere on his body. He noted that he had a serious cut to his neck which could have killed him.

The worker advised that he has not received benefits since June 2014. He has not been able to find employment and has not worked. He is no longer able to do heavy lifting. He would like assistance from the WCB and feels he should be retrained because he cannot return to his old job and he cannot do the heavy work that he was able to do before the accident. He said that he has bone on bone in his injured knee.

In answer to questions, the worker advised that he has returned to playing old timer's hockey, does some weight lifting and tries to stay fit. He also coaches hockey 1 or 2 times a week. He denied that he is training to run a half marathon and says that he has not done any running the past few years. He acknowledged that he has good upper body strength.

He advised that he has looked for employment but has not found an appropriate job. He thinks he can drive a truck but has refused to accept employment as a long distance driver. He said that at this time of his life he is not ready to leave his family for 4 to 5 day work trips. He also considered construction work but said that he was not ready to work long work days. He feels he could drive a dump truck but has never used tarps. He said that courier work is paid on a "piece work" basis and would not pay enough. He will consider anything that pays "half decently."

The worker said that he has applied at some places for jobs involving straight days, including a forklift operator and some driving jobs but has not got called back. He has his class 1 license.

He would like to be retrained in a new profession, perhaps as a surveyor, or electrician or a physically lighter job.

In answer to a question, the worker said that he thinks he could do his old job if it was available.

Employer Position

The employer was represented by its health and safety director. The employer representative submitted that given the type of injury and the surgery the worker underwent, he should be recovered. He submitted that the worker should not receive any further assistance from the WCB.

Analysis

The worker is seeking wage loss benefits beyond June 10, 2014. For the worker's appeal to be approved, the panel must find that the worker continued to sustain a loss of earning capacity as a result of his workplace accident after June 10, 2014. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity due to the workplace injury after June 10, 2014.

In reaching this decision the panel attaches significant weight to the following:

• the April 25, 2014 examination by a WCB medical advisor who recommended a graduated return to work without restrictions. The panel notes that the medical advisor did not identify any posterior collateral ligament laxity upon examination.

• the Functional Capacity Evaluation performed on August 7, 2013 which indicates that "[worker] reported the following abilities; 'no limitations' to standing, walking, sitting, bending/stooping, climbing stairs/ladders, crawling/kneeling, crouching/squatting and reaching."

• the June 2014 Final Re-assessment report on his Reconditioning Program which indicates "Functionally he demonstrated the ability to bilaterally push/pull 80lbs., bilaterally lift and carry 60 lbs." The report also noted the worker's work out was approximately 2 1/4 hours and involved a variety of exercises.

The panel considered the February 10, 2015 report of the treating orthopedic surgeon. The panel finds the surgeon's reference to employment "...that limits the duration and intensity of standing, walking or lifting" to be unclear and contrary to the evidence of his assessed functional abilities.

The panel noted the worker's evidence that he believes he could perform the duties of his job, if the employer called him back. The panel was left with the impression the worker has made a personal choice to restrict the type of employment that he will consider. He advised that he refused two jobs, one due to the out-of-province travel which would keep him away from home for 4-5 days at a time and one which required late hours which he was not prepared to work. He told the panel that given his age and his family duties he does not want to go out of town or work long hours.

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 27th day of May, 2015