The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits for the period May 1, 2016 to April 11, 2017. A hearing was held on January 10, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for the period May 1, 2016 to April 11, 2017.

Decision

The worker is entitled to wage loss benefits for the period May 1, 2016 to April 11, 2017.

Background

The worker, a truck driver, was involved in a motor vehicle accident on November 6, 2013, which was reported to his employer on November 7, 2013.

The worker was transported to the local emergency room on November 6, 2013 where he was diagnosed with a "…comminuted compound fracture of the right proximal tibia with posterior displacement, and rotation of the fibula." The worker was transported to the hospital in his home province where he underwent orthopedic surgery to place screws and plates in his right leg on November 8, 2013. On November 18, 2013, the WCB advised the worker his claim was accepted and payment of wage loss and other benefits commenced.

On December 29, 2014, the worker's physiotherapist recommended that the worker could return to work with modified duties of sedentary work only, four hours a day. The worker returned to modified duties on January 6, 2014. On February 12, 2014 the worker's employer advised the WCB that they could no longer accommodate the worker with his modified duties. The employer once again advised they could accommodate the worker's modified duties on June 9, 2014. On June 24, 2014, the worker's doctor confirmed that the worker could return to work on his full, regular duties with no restrictions.

The worker had a further surgery on his right knee on July 22, 2014 involving a "Right knee arthroscopy with patellar and lateral tib (tibia) plateau chondroplasty and partial lateral meniscectomy, removal of hardware, and exchange for shorter screws on tibial plate." After the surgery, the worker did some modified duties but returned to his regular, full time duties on August 12, 2014.

On May 25, 2016, the worker contacted the WCB and advised that his injury had been aggravated by longer periods of driving. He also advised the WCB that due to a change in ownership of his employer, the company was in a new location that requires him to walk further to get to the office. He also advised that previously he had been working Monday to Friday, returning every day. Now he was working eight to nine hours, up to fifteen hours per day. By the end of his shifts, he advised that he was having "…a lot of difficulty pressing on the accelerator and the breaks (sp) and this is becoming dangerous." He further advised that he advised his supervisor of the difficulties and that co-workers would observe him limping. He also confirmed with the WCB that he was no longer working for his employer.

At a follow-up appointment on June 2, 2016, the worker's family doctor advised that the worker had "…worsening right knee pain, limited range of motion and difficult ambulation." It was also noted that the worker had been referred to an orthopedic surgeon for further assessment.

The worker was seen by the orthopedic surgeon on June 8, 2016 who diagnosed the worker with "…post-traumatic osteoarthrosis of his right knee joint." Surgery was not recommended but a pain relief injection was suggested. A review of the worker's claim by a WCB medical advisor on June 15, 2016 confirmed the diagnosis of osteoarthritis involving the lateral compartment and the patella-femoral compartment of the right knee. The WCB medical advisor opined that it was probable the osteoarthritis was post-traumatic and related to the workplace injury. The WCB medical advisor further noted that a functional capacity evaluation (FCE) would be requested to determine the worker's permanent restrictions.

An FCE was conducted by the WCB orthopedic consultant on July 7, 2016. The WCB orthopedic consultant recommended the following permanent restrictions:

• No repetitive kneeling, squatting or crawling, 

• No repetitive ladder or stair climbing, 

• No prolonged walking or standing more than 30 minutes.

On July 14, 2016, the worker was advised that he was not entitled to wage loss benefits, as the permanent restrictions noted from the FCE would not preclude him from driving a truck. As well, it was noted that as the worker was let go from his employment for reasons unrelated to the compensable injury, he was not entitled to wage loss benefits. The worker disagreed with the WCB's decision and asked for reconsideration. He advised the WCB on July 14, 2016 that "…he is not able to drive and his knee is so weak after driving for 5 - 6 hours that he can hardly press on the brake to stop the vehicle." On July 29, 2016, he submitted a written request along with a description of his job duties, a copy of a July 22, 2016 letter from his family doctor to Manitoba Public Insurance asking for a driving assessment and a copy of a July 27, 2016 letter from Manitoba Public Insurance advising that the worker's license had been suspended commencing on August 3, 2016. A driving assessment was conducted on the worker on August 16, 2016 and the occupational therapist noted that it did not appear reasonable for the worker to resume Class 1 driving.

The worker was advised on September 14, 2016 that a further review of his claim was conducted and there would no change in the WCB's July 14, 2016 decision.

The worker had a follow-up appointment with the orthopedic surgeon on September 21, 2016. Further surgery was recommended as the worker was still reporting pain and stiffness and was not responding well to the pain relief injections. The worker's family doctor also provided a note, dated October 3, 2016, advising that the worker was fit to return to work "…with the exception of being a truck driver due to severe right knee pain and weakness which makes him unable to drive safely."

On October 20, 2016, the worker's representative requested the WCB reconsider their September 14, 2016 decision based on the written advice of the worker's doctor, dated October 3, 2016, that the worker was unable to continue working as a truck driver. The WCB advised the worker on December 9, 2016 that there was no change to their earlier decision.

The worker's representative requested reconsideration on December 14, 2016 of the WCB's decision to Review Office. On December 16, 2016, Review Office advised the worker that they were returning his file to the WCB to obtain additional information from his employer. Review Office found that the WCB should contact the worker's employer and obtain more information on the worker's pre-accident job duties, the reason/date the worker left his employment and inquire about whether the worker's employer was aware of any complaints regarding his injury prior to leaving their employment.

Both the worker and the employer submitted further information to the WCB and on February 6, 2017, the WCB advised the worker that there was no change in the decision to end his benefits. The WCB advised that they received advice from the employer that the worker terminated his employment voluntarily and did not provide his employer the opportunity to offer an accommodation. As well, the WCB advised that they had received a letter from EI (Employment Insurance) indicating that the worker had applied for benefits but was advised "we will not pay you any regular benefits because you voluntarily left your employment with [employee] on April 30, 2016 without just cause. We believe that voluntarily leaving your employment was not your only reasonable alternative."

The worker's representative requested further reconsideration by Review Office on March 1, 2017, stating that there was disagreement with the previous decision of the WCB regarding the worker terminating his employment with the employer. The worker's representative provided that the worker approached his employer regarding his concerns on a number of occasions before quitting but his accommodation requests were refused.

The worker then had surgery, in part, to remove the plate and screws from his right knee on April 12, 2017. Wage loss benefits were reinstated as of that date.

The employer provided a written submission on April 25, 2017. Review Office requested a review of the claim by a WCB orthopedic advisor which was provided on May 11, 2017. The WCB orthopedic advisor's opinion was shared with all the parties and the worker's representative provided a written response on May 11, 2017.

On May 29, 2017, Review Office determined that the worker was not entitled to wage loss benefits from May 1, 2016 to April 11, 2017, upholding the WCB's earlier decisions. Review Office gave weight to the evidence that the worker returned to his regular duties after the workplace accident and continued working until April 30, 2016 when he advised his employer he was requesting his vacation pay and that he had "…future employment elsewhere." At that time, the worker did not inform his employer he was leaving his job due to difficulties he was experiencing with his right knee or his job duties. Review Office also found that the worker then did not contact the WCB until May 25, 2016 to report further right leg/knee complaints. Review Office considered the delay by the worker in notifying the WCB to be significant. Review Office also gave weight to the May 11, 2017 WCB orthopedic consultant's opinion that the worker's restrictions set out in July 2016 were appropriate for the worker from May 2016 to April 2017 and were compatible with his truck driving duties. Review Office did not accept that the worker's change to his driver license was supported by medical findings from his compensable injury. Review Office also placed weight on the employer's advice that had the worker supplied medical information regarding his right leg prior to terminating his employment, the worker would have been accommodated.

The worker's representative filed an application with the Appeal Commission on June 12, 2017. An oral hearing was held on January 10, 2018.

Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On May 14, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

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.

Subsection 4(2) provides that 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 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.

The worker has an accepted claim for a workplace injury and is appealing the WCB decision that he is not entitled to benefits for the period May 1, 2016 to April 11, 2017.

Worker's Position

The worker was represented by a worker advisor. The worker's representative outlined the worker's positon. He said that the worker is entitled to full wage loss benefits for the entirety of the time period under consideration. He said:

Our position is that his decision to quit his employment was justified because it was no longer safe for him to continue performing his regular job duties as a linehaul driver.

The worker advisor also stated that the employer was unwilling to accommodate his earlier requests for reduced hours and/or different work duties.

Regarding the worker's medical condition, the worker's representative noted that the worker developed compensable post-traumatic osteoarthritis of his right knee. He said that this condition and the metal hardware implanted in the worker's leg caused the worker increased pain and weakness over the course of a work shift that made long-distance driving unsafe for him, other motorists and pedestrians.

The worker advisor noted that an occupational therapist who assessed the worker’s driving ability in August 2016 (using a passenger vehicle) determined that he should not be operating Class 1 vehicles. The worker's representative asked the panel to attach weight to this evidence. He noted that the WCB did not attach weight to the driving assessment and that the worker had offered to undergo a second functional capacity evaluation.

The worker advisor said that in late 2015, the worker's physical work location changed after his employer merged with another company. He said that at the new premises, the worker was required to walk long distances in warehouses at both ends of his trips. As well, other job responsibilities bothered his leg including climbing up and down the body of a truck. The worker advisor submitted that these activities fatigued his knee and involved physical stresses that were incompatible with the WCB-imposed permanent work restrictions.

The worker's representative noted that in a letter addressed to the Review Office, an employer representative confirmed that the worker complained about his leg to at least one co-worker.

The worker advised that he was involved in two incidents in March 2016:

the first weekend of March the truck transmission blew coming up a hill … --three weekends later he put a trailer across the lane at a major road and the perimeter for three and a half hours. He could not do anything by himself.

The worker advised that he had weekly contact with the employer's representative (RL) every week between January and April of 2016. He also spoke with another employer representative. He said he told them about his concerns and problems. He indicated that he asked for reduced duties but that the employer did not reduce his duties.

Regarding the form that he completed on April 30, 2016, the worker advised that contrary to the information in the form, he did not have another job to go to.

The worker advised that the change in ownership, and the relocation to other premises, was difficult because of the amount of walking required at the new premises. He also advised that he was not aware of the new firm's structure:

If I would have known where to go, I wouldn’t have been down this road, but I didn’t know where to go. And at that time there was nobody from [new owner] and me communicating. I worked for [old firm], I took my orders from [old firm] at night.

The worker claimed that he contacted many firms looking for work but within 90 days he lost his Class 1 license. He advised that he was unable to find work. He received 15 weeks of Employment Insurance (EI) sick benefits and then regular benefits up until he had further surgery. He said that he advised EI that he quit work because he could not drive due to his injury.

The worker advised that he currently has a Class 3 license with the restriction of automatic transmission only.

In response to the information received by the panel from Employment Insurance after the hearing, the worker's representative noted that the information included in the EI documentation was consistent with the claim file information and the worker's evidence at the hearing.

Employer Position

The employer was represented by its Human Resource Generalist. She explained the relationship between the current employer and the related companies. She advised that the employer concurs with WCB’s decision that the worker is not entitled to wage loss from May 1, 2016 to April 11, 2017.

The employer representative advised that the worker:

…resigned without reasoning of his knee or leg pain, he had other work. Accommodation in the workplace would have, and could have, been done with [worker].

… at no point and time was [worker] provided written documentation, or did he ever set up a meeting with any of the senior management to discuss his concerns about returning to modified duties.

And again, we complied with the medical from WCB that said he could, in fact, resume as a driver.

The employer representative noted that the employer has 500 employees with over 300 non-driving positions. She said that the employer would have been able to accommodate the worker in modified duties had it been aware of the worker's restrictions and concerns.

She noted that the worker drove long haul which was pin to pin and that he was not required to load stock onto trucks or trailers.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits for the period from May 1, 2016 to April 11, 2017. For the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity during this period as result of his November 2013 workplace injury. The panel is able to make this finding, for the reasons that follow.

To assist with its decision making, the panel obtained information from Employment Insurance regarding the worker's application for EI benefits in May 2016. The worker's EI application form for sickness benefits indicated:

6. Explain why you quit your job even though your doctor did not advise you to quit?

Answer: I have a problem with keeping pressure to fuel pedal and brakes on an (sic) a big truck I am not safe on the hiway (sic) after 4 or 5 houru (sic) of driving I start shaking with fuel foot very hard to keep pressure with heavy loads and break downs almost bring me to my knees too long of hours for my leg.

17. Explain why you did not look for a job with another employer before you quit your job.

Answer: I almost crash truck into 3 cars cause my leg was shaking and I could not keep enough pressure on the brake peddle (sic) work knew my condition I still walk with a limp

Included in the EI file was a letter from the worker's treating physician which indicated, in part:

This is to state that [worker] with PMHx of right knee surgery experiences worsening right knee pain, limited range of motion and difficult ambulation. He has been off work since March 30, 2016 due to his right knee symptoms for which he was not able to continue to work as a truck driver. In order to better assess and manage his right knee pain, he has been referred to orthopedic surgeon for further assessment. Currently he is waiting for his appointment.

Also included in the EI file was a Notice of suspension - section 18(3) of the Drivers and Vehicles Act. This suspension provided, in part, that:

This suspension will remain in force indefinitely or until you have complied with the following requirement(s):

Furnish Driver Fitness with a medical report (enclosed and to be completed by a physician).

Furnish Driver Fitness with a driver assessment to be completed by an occupational therapist from the Rehabilitation Hospital, Health Sciences Centre, Winnipeg…This assessment will not be conducted until the above requirement's have been approved by Manitoba Public Insurance.

The Supplementary record of claim indicated the worker advised EU that:

"He has had to work through leg pain for 3 years before quitting his employment. During this time, he has had multiple conversations with the employer, especially [name], his supervisor in Winnipeg and also [name], another manger about modified duties, such as reducing his work hours, working dayshift so that he can get out of the vehicle more often etc. but his requests were constantly denied or ignored.

The panel attaches significant weight to the above evidence. The panel finds that the evidence is consistent with the worker's evidence at the hearing, specifically that: he quit work in April 2016 for medical and safety reasons and that his class 1 license was removed for safety reasons which would have precluded him from driving.

The panel accepts that the change in ownership structure made communications with the employer more difficult. As well the panel accepts that the relocation of the work site increased the walking distance at the start and end of shifts, which further aggravated an injured knee.

The panel notes that an orthopedic surgeon examined the worker on June 8, 2016 and noted evidence of post-traumatic osteoarthrosis of this right knee. The panel notes that on April 12, 2017 the worker had further surgery on his right knee.

The worker's appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of June, 2018