Decision #142/17 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss benefits after January 19, 2016 in relation to his compensation claim. A hearing was held on September 26, 2017 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to wage loss benefits after January 19, 2016.
Decision
That the worker is entitled to wage loss benefits after January 19, 2016.
Background
On January 17, 2016, the worker slipped on an air hose and struck his left knee on a steel bin. The worker advised that he felt a twinge in his knee at the time of the accident and then later in the evening his knee became swollen and the inside of his knee was very sore. On January 19, 2016, the worker attended a hospital facility for treatment and was diagnosed with a left knee soft tissue injury. On January 20, 2016, the worker returned to work at modified duties that involved paperwork.
In a doctor's progress report dated January 27, 2016, the treating physician questioned a knee sprain/meniscal tear. An MRI scan of the left knee was arranged for July 14, 2016.
The worker performed sedentary duties from January 20 to January 25, 2016 and discontinued same at the advice of his treating physician.
On February 1, 2016, Compensation Services advised the worker that responsibility for his left knee difficulties was accepted by the WCB and that wage loss benefits would be paid for January 19, 2016 inclusive and final. It was determined by the case manager that the evidence on file supported that the worker would have been capable of performing the sedentary paperwork duties for his employer effective January 26, 2016 onwards.
On February 16, 2016, the worker advised the WCB that he was involved in a motor vehicle accident ("MVA") on February 5, 2016 and that he hurt his neck and low back. The worker advised that he has been off work since February 5 due to the MVA and that his left knee was currently sore.
On March 17, 2016, the worker's union representative advised the WCB of the following:
• Worker was off work anytime the doctor told him to be off.
• The worker was not offered any modified duties from his employer until January 28, 2016.
• The worker's leg was very swollen and the doctor advised him to ice it and keep it elevated higher than his chest.
• There was no way his employer could have accommodated him.
• He was not to go up and down stairs and the bathroom was up a flight of stairs.
• The MVA injured his neck, not his knee. His knee, however, is still in pain and he thinks that even once his neck is healed he will not be able to work due to the knee injury.
In a telephone conversation with the employer on April 21, 2016, the adjudicator noted:
• Employer said worker came in April 12 to give doctors note to be off until May 13. Worker told employer that he is off due to the MVA still. He is still on MPI claim and has to go for some appointments to deal with a concussion now.
• Employer said worker is still limping but has improved because he is no longer on crutches.
• Employer said worker worked Jan 20 - Jan 25 then was off and returned Feb 1- Feb 4 on m/d. Then was in MVA on Feb 5
• Employer said to her knowledge she does not recall worker making complaints that leg was not elevated enough or ice packs were not cold enough otherwise they would have adjusted the height and provided more ice packs.
In a second decision dated April 21, 2016, Compensation Services advised the worker that there was no loss of earning capacity due to the workplace injury after January 19, 2016. It was felt that appropriate modified work was available as of January 19, 2016 and there was no evidence to support that he was unable to participate in the return to work program provided by his employer.
The worker's MRI appointment was rescheduled and took place on May 25, 2016. The findings showed a horizontal tear of the medial meniscus with an inferiorly flipped fragment and a small knee joint effusion.
On July 14, 2016, the union representative requested reconsideration of the WCB decision to deny payment of benefits beyond January 19, 2016 and coverage for a prescribed knee brace.
On July 28, 2016, Review Office determined that it was premature to consider the appeal and the case was returned to primary adjudication to consider the MRI results and to gather additional information regarding the modified duty accommodation.
In memos to file dated July 28, 2016, the case manager documented information he obtained from the worker as to why he thought the workplace accommodation was inappropriate. The case manager also spoke with an employer representative regarding the workplace accommodation.
On August 30, 2016, Compensation Services advised the worker that there was insufficient information to warrant a change to the initial decision that there was no entitlement to benefits beyond January 19, 2016. The case manager stated, in part, that an email dated August 8, 2016 from the employer confirmed that the worker made no formal request to use the main floor bathroom; that the main floor washroom was typically off limits but accommodations had been made in the past for other staff to use it if necessary. The case manager also noted that a WCB medical advisor reviewed the photographs submitted by the union and opined that there was no medical contraindications prohibiting the worker from making causal use of the stairs in question. The equipment provided to assist elevation of the left leg would be appropriate given the nature of the worker's left knee injury.
On September 26, 2016, the worker underwent surgery to his knee which was accepted as a WCB responsibility. The post-operative diagnosis was a medial meniscus tear of the left knee, lateral meniscus tear, synovitis and medial compartment chondromalacia.
On November 24, 2016, the union representative wrote to Review Office appealing the WCB decisions regarding the work accommodation and the denial of wage loss benefits beyond January 19, 2016.
On December 16, 2016, the employer's representative advised Review Office that they agreed with the decision dated April 21, 2016 that the worker was not entitled to time loss for the period January 26 to 29, 2016. In January 2017, the worker responded to the employer's submission.
On January 12, 2017, Review Office determined that the worker was not entitled to wage loss benefits beyond January 19, 2016.
Review Office concluded that the worker's concerns with the modified duties at work were unfounded as "the worker's access to the bathroom facilities at work was not materially different than his access to the facilities in his home…" Review Office noted that the worker raised a second issue around his inability to ice his left knee/leg. Review Office noted "The worker had access to ice at work and was notified by Compensation Services that he could bring extra ice packs from home. He also had the ability to elevate his left knee/leg at work. If the worker had concerns with the workstation setup he was provided, we feel that he could have asked for accommodation assistance through his employer and the WCB. We find no evidence to support he did."
Review Office considered the medical report of January 25, 2016 but did not find the medical findings supported that the worker was totally disabled as suggested by the treating physician. Review Office noted that meniscal injuries are not typically associated with total disability beyond the acute phase of injury when modified duties were available to the worker.
Review Office acknowledged the unions' concerns in regard to modified duties not being offered a second time after the physical abilities form was handed in on January 25, 2016. Review Office concluded, however, that the worker was aware that modified duties were available to him as he had already been performing them for several days. It found that the same duties would have remained available for him to perform beyond January 19, 2016, eliminating his loss of earning capacity.
On May 13, 2017, the worker appealed Review Office's decision to the Appeal Commission and an oral 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 WCB's Board of Directors.
Subsection 4(1) of the Act provides that 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.
Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
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."
Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such 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 represented by two union representatives, one of whom made a presentation to the panel. The representative and the worker answered questions from the panel.
The representative advised that:
• the worker was working night shift which ran from 11:00 PM until 7:00 AM.
• near the end of the shift on a Monday morning the worker tripped over an air hose, fell and banged his knee on a steel bin and the concrete floor.
• he didn't report it right away and went home thinking it was not a big deal.
• later Monday he got up and his knee was quite swollen.
• he came to work and reported to his supervisor, was provided a capabilities form, then went to a healthcare facility and saw a physician.
• the physician completed the form and indicated that the worker was capable of sitting, no stairs, no walking, no standing, no stooping, bending, no lifting.
• the worker was accommodated in a training program.
• the physician also noted that the worker should be off work for 4 days at a minimum.
• the worker was told to ice his knee and he reported to work for the balance of the week.
• the worker's knee was painful and the swelling was not improving.
• the physician prescribed medication including a pain killer, but the worker did not take the pain killer because it made him sleepy.
• he reported to work Sunday night and worked until 7:00 AM Monday.
• he then attended his family physician who completed a capabilities form which indicated no crawling, no crouching, no stairs, no kneeling, no standing, no walking. The physician also indicated no sitting.
• the physician didn't want the worker to do any kind of weight bearing. He noted the swelling was not going down and questioned a possible meniscus tear and scheduled him for an MRI at the end of July.
• the physician's note indicated off work one month. • the physician prescribed a knee brace.
• the worker saw the afternoon shift supervisor around 4:30 and gave him the note which indicated time off.
• the worker did not work January 26 to 29.
• the worker received a call from a WCB adjudicator who told him he should return to work and the worker returned to work on afternoon shift on February 1, 2016 and worked until Friday February 5, 2016 when he was injured in a motor vehicle accident.
• the worker has not worked since February 5, 2016 and is currently off on an auto insurance claim.
• the worker had surgery for his knee injury.
The worker's representative confirmed that the appeal deals with 4 days lost time, January 26 to 29, 2016.
The worker explained that he relied upon a January 25, 2016 medical report from his family physician and missed work for 4 days. He returned to work contrary to his physician's recommendation on February 1, 2016 because he felt that he had no choice as he had no source of income. He said that the WCB adjudicator told him he had to work or he would not be paid. He subsequently stopped work on February 5, 2016 because of the motor vehicle accident. He advised that he is still off as of the date of the hearing due to the motor vehicle accident.
The worker's representative expressed concern about the modified duties, working conditions, access to facilities and the WCB's delay in approving the worker's knee brace.
The worker's representative submitted that:
He did what he was told by his doctor. His doctor advised him to stay off for medical reasons to bring the swelling down so he could be examined properly, so that would lessen the pain and the swelling and that and not cause further damage…
So his doctor was right, but he's penalized for it for listening to his doctor and helping himself and doing what was right medically for himself…
Employer's Position
The employer was represented by its HR Manager and Payroll Coordinator. The HR Manager answered questions from the panel and confirmed details of the claim. She also explained the employer's claim, injury and return to work process. She indicated that the employer operates 24 hours a day and is able to accommodate most injuries. She provided a medical form which was not on the claim file.
In reply to a question, the HR Manager agreed with the WCB that the worker should have worked the 4 days he missed in January as he demonstrated that he could work the prior week.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss benefits after January 19, 2016. At the hearing, the parties agreed that the issue pertains to a four day period, January 26 to 29 inclusive. For the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity for the period January 26, 2016 to January 29 2016, as a result of his January 18, 2016 workplace accident.
The panel is able to find that the worker suffered a loss of earning capacity between January 26, 2016 and January 29, 2016 as a result of his workplace accident and is entitled to payment of wage loss benefits for this 4 day period.
In making this decision, the panel attaches significant weight to the opinion of the worker's family physician who provided a Medical Certificate dated January 25, 2016 which was provided by the worker to the employer on January 25, 2016. The certificate notes a duration of absences from January 25 to February 25, 2016. It indicates that the worker was examined by the physician on January 25, 2016 and that the worker is not fit for a return to work. The certificate indicated:
2. On the basis of my review of the patient's illness, I conclude that the patient would have been required to be off work for the time noted. Objective evidence confirmed
The worker's family physician also provided a report to the WCB dated January 25, 2016 in which he noted "left knee medial swelling and tenderness, MCL laxity." The physician queried a knee sprain and meniscal tear and recommended that the worker remain off work.
The panel accepts the evidence that the worker's knee was badly swollen when he saw his physician on January 25, 2016, and that his physician was worried that the worker's knee was worsening. The panel finds that in the circumstances of this claim, it was reasonable for the worker to be off work as recommended by his physician.
The panel notes that the worker had an MRI on May 25, 2016 which confirmed that he had a horizontal tear of the medial meniscus and a small knee effusion. The panel finds that the subsequent MRI confirms the physician's concern that the worker sustained a serious knee injury.
The worker's appeal is approved.
Panel Members
A. Scramstad, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of October, 2017