The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she had recovered from her compensable knee injury and was not entitled to benefits after May 21, 2015. A hearing was held on February 10, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after May 21, 2015

Decision

That the worker is entitled to benefits after May 21, 2015 during the four week period commencing May 26, 2015 up to and including June 18, 2015 in relation to the graduated return to work program.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury to her right knee, lower leg and low back that occurred on March 9, 2015. The worker reported that she was going on a call to see a client and when closing the car door her right leg slipped on ice. She felt instant pain in her right knee and the pain increased from her mid to low back overnight.

The worker also reported that she had previously injured her right knee on December 26, 2014 when playing with her kids on a trampoline. She sought medical attention at that time and an MRI assessment of her knee was taken.

Subsequent file records contain additional information from the worker regarding the incident that occurred in December 2014 and the incident that occurred in March 2015 when she injured her knee along with corresponding medical and test results.

On April 28, 2015, a WCB medical advisor answered questions posed by WCB case management regarding the worker's knee condition. The medical advisor commented that the MRI showed an ACL tear which predated the workplace accident of March 9, 2015 and that the initial presentation following the March 9, 2015 accident was consistent with a knee sprain in the environment of an ACL tear. A medical meniscus tear should be ruled out. The medical advisor further stated:

When the ACL gives way, it causes a general knee sprain or synovitis. This can take a few days to weeks to settle. It can also result in a meniscus tear, but it's unclear if that has happened here since there are different reports from different practitioners. It would be reasonable to get an MRI so it can be documented if there is one in relation to this workplace accident. A request has been sent to the treating sports medicine physician accordingly. If there is no evidence of a meniscus tear, then full recovery is expected. If there is a meniscus tear, then surgery may be recommended for that and recovery is about 6 weeks after the procedure.

The ACL tear itself will not heal. It can cause recurrent episodes of instability. If this impacts someone's regular activity, then ACL reconstruction would be recommended.

The episode at work would not change the natural history of the ACL tear, so there is no evidence of aggravation or enhancement.

In a decision dated May 15, 2015, the WCB acknowledged that the worker suffered a right knee sprain as a result of the March 9, 2015 workplace accident. As it was now 10+ weeks post-injury, the case manager opined that the worker had recovered from the effects of the workplace injury and her current and ongoing difficulties are a result of the pre-existing ACL tear of December 26, 2014. The worker was advised that entitlement to WCB benefits would end on May 22, 2015 in keeping with WCB policy. The worker disagreed with the decision and her file was referred to Review Office for consideration.

On August 11, 2015, Review Office upheld the decision that the worker was not entitled to benefits beyond May 21, 2015. In making its decision, Review Office placed weight on the comments made by the WCB medical advisor in April 2015. Review Office noted that following this medical opinion, no further MRI results post workplace accident were received. As such, it concluded that the compensable injury sustained on March 9, 2015 was a right knee sprain and that typically, recovery from this diagnosis would occur within a short duration. Review Office concluded that the worker had likely recovered from the effects of her compensable right knee injury by May 21, 2015.

On August 26, 2015, the worker underwent right knee surgery and the operative report was reviewed by a WCB orthopedic consultant on September 16, 2015 at the request of Review Office. The consultant stated, in part:

The MRI of the right knee at [hospital] dated February 17, 2015 is reported as demonstrating a complete tear of the ACL, no effusion and no bone bruising. Effusion and bone bruising are often seen as a result of recent injuries to the knee ligaments. In the absence of effusion and bone bruising, the ligament injury is considered to be remote in time.

Arthroscopy is generally considered to be the gold standard of diagnosis within a joint. Arthroscopy of the right knee dated August 26, 2015, confirmed a complete tear of the ACL. Apart from some chondromalacia of the patella, there were no other abnormalities and the menisci were noted to be normal on direct observation and probing. The arthroscopy findings are similar to the MRI reported findings.

On September 17, 2015, the orthopedic consultant further stated:

The arthroscopy findings included chondromalacia of the patella. This is a condition of softening and fraying of the articular surface of the patella. It is a degenerative process and is often observed in knees with Antero-Posterior instability because of deficiency of the ACL. It would not be related to the workplace injury, but is a late effect of the ACL rupture. Although sometimes asymptomatic, patellar chondromalacia sometimes is the cause of anterior knee pain; the reported peri-patellar pain in this worker is likely to be related to the degenerative change in the articular surface of the patella, not to the workplace injury.

In a further decision dated September 17, 2015, Review Office referred to the comments made by the WCB orthopedic consultant and confirmed its previous decision that the compensable injury sustained on March 9, 2015 was a right knee sprain in the environment of a pre-existing ACL tear. It found that recovery from the compensable injury likely occurred by May 21, 2015.

As the worker disagreed with Review Office, an appeal was filed with the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

The worker has an accepted claim for workplace injuries that occurred in 2015. She is seeking further benefits in relation to the workplace injuries.

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB's Board of Directors.

Under subsection 4(1) of 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 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury. 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. She outlined her reasons for appealing the WCB decision and answered questions posed by the panel.

She advised that she first injured her knee away from work on December 7, 2014. She hurt herself badly on a trampoline. She said that her doctors told her, "it’s probably nothing serious, probably not a torn ligament..." She was able to return to work in December 2014 after this injury. Towards mid to the end of February she saw a doctor who advised that she was doing fine and that she did not have to see him again. She had an MRI and the doctor told her there was nothing on her MRI. She still had pain but was getting better.

The worker advised that she then had a workplace injury on March 9, 2015. She said she slipped on ice while going to a client's house. She took a vacation hoping that her knee would improve but it did not. She saw her family doctor who advised her the MRI showed a torn ACL.

She advised that she had not intended to apply for WCB benefits but because the second injury obviously caused increased symptoms and pain, she contacted the WCB.

She advised that the WCB accepted her claim and then determined that she was entitled to benefits. She said that the WCB then told her that her benefits would be cutoff at the ten-week mark, because ten weeks is the normal time for a sprain to be healed. She had expected the WCB to provide benefits while she participated in a graduated return to work. However, they told her that a typical knee sprain is covered only within ten weeks, and after ten weeks you have recovered. On her physiotherapist's advice, she returned to work in May 2015 on a graduated basis and worked until August. She advised that when she commenced the return to work, she had significant pain which she attributed to the workplace injury.

The worker advised that she ultimately saw another physician and a surgeon, and underwent surgery for her torn ligament in August 2015. She was off until December 2015. The worker advised that she is seeking wage loss benefits for the period of her graduated return to work. She stated:

I just wanted them to pay me the hours missed because I was told, don’t go back to work full-time, we want you to go back four hours a day, and gradually each week add one more hour.

The worker confirmed that she commenced her return to work at modified duties on May 26, 2015 commencing at 4 hours per day and increased her daily hours at the rate of one hour per week. She said she returned to regular hours by June 18, 2015.

With respect to the treating physiotherapist's May 8, 2015 note that the worker was fit to return to light duties for 4 hours per day, the worker advised that her employer did not have light duties at that time. She also advised that she was expecting the WCB to contact her about a return to work but she did not hear from the WCB until May 15, 2015. She said that a return to work was arranged to start on May 26, 2015.

Employer's Position

The employer did not participate in the hearing of this appeal.

Analysis

The worker has an accepted claim for a right knee injury that occurred on March 9, 2015. She is appealing the WCB decision that she is not entitled to benefits beyond May 21, 2015.

For the worker's appeal of this issue to be approved, the panel must find that the worker continued to suffer a loss of earning capacity, required medical aid benefits or other benefits as a result of the March 2015 accident beyond May 21, 2015. The panel was able to make this finding.

The panel finds that the worker sustained a sprain of her right knee when she slipped at work in March 2015. The panel accepts the April 28, 2015 opinion of the WCB medical advisor that the worker sustained a sprain in the environment of a pre-existing ACL tear. The worker advised that she continued to have symptoms and decreased function in her right knee after May 21, 2015. The panel accepts this evidence.

The panel accepts the opinion of the worker's physiotherapist that the worker should return to work on a graduated basis commencing at 4 hours per day and gradually increasing by one hour per week until she was working full time.

The panel finds that the worker is entitled to wage loss benefits during the period of her graduated return to work. The panel notes that the worker's return to work was delayed in part due to a lack of modified duties at the employer's and a lack of communications between the parties and the WCB. Further, based upon the worker's evidence, the panel finds that the worker had not functionally recovered as of May 21, 2015 from the consequences of the right knee strain and that the related loss of earning capacity did not end, until the graduated return to work was completed.

The worker advised that she commenced the graduated return to work the week of May 26, 2015 with her daily hours of work increasing by one hour each week until she was at 8 hours per day. Accordingly, the panel finds the worker was entitled to wage loss for an additional four weeks until June 18, 2015.

The worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
C. Devlin, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 23rd day of March, 2016