The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss benefits after January 13, 2014. A hearing was held on March 12, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after January 13, 2014.

Decision

That the worker is not entitled to wage loss benefits after January 13, 2014.

Background

The worker, a nurse, reported to the WCB that she injured her left knee on February 6, 2008, when she was working with a resident and her left knee "…went sideways while standing, and I almost fell." The worker was seen at a walk-in clinic later that day, where she reported difficulty walking on her left knee because of pain and swelling. The attending physician noted that the worker's left knee was "…quite swollen with an effusion to the top half of the knee…" and referred her to an orthopedic surgeon.

On February 12, 2008, the worker attended an initial assessment with the orthopedic surgeon, who noted that the swelling in the worker's knee had subsided and her range of motion had improved. The worker reported that she was able to weight bear on her knee with "…no pain whatsoever." The orthopedic surgeon queried an injury to the worker's ACL (anterior cruciate ligament) and/or medial meniscus and referred the worker for an MRI. The MRI, performed February 14, 2008, revealed "Moderate osteoarthritis and degeneration of the medial meniscus. Complete tear of the ACL." At a follow-up appointment with the orthopedic surgeon on February 22, 2008, the worker was referred to another orthopedic surgeon for surgical repair of her ACL.

The worker's claim was accepted by the WCB on March 3, 2008.

On September 16, 2008, the worker underwent left knee arthroscopy, with partial medial and lateral meniscectomies, debridement of the medial femoral condyle and debridement of the lateral femoral condyle. The treating orthopedic surgeon noted in the operative report that "…a simple ACL reconstruction will not solve this woman's knee problem and she will likely require a total knee arthroplasty." The worker began physiotherapy on October 6, 2008, and returned to modified duties with reduced hours on November 4, 2008.

On April 20, 2009, following a call-in examination with a WCB medical advisor, the WCB advised the employer that the worker's temporary restrictions were to avoid sudden torsion to the left knee and avoid repetitive bending, crouching and kneeling. On October 9, 2009, a further restriction was added: to avoid prolonged standing and walking without the ability to sit, and the employer was advised that these restrictions were permanent. On January 7, 2010, the employer was advised that the worker had a further permanent restriction, namely that she was able to work up to 8 hours a shift.

On March 18, 2010, the worker's restrictions were updated to include that she was able to work up to 8 hours per shift for no more than 5 consecutive shifts. At a follow-up appointment on July 15, 2010, the worker's family physician noted that the worker was having ongoing symptoms of knee pain after working full-time, and recommended that she only work a .8 or .9 schedule instead of full-time. On August 25, 2010, the employer confirmed that the worker was now working a .9 EFT (equivalent to full-time) schedule.

On November 23, 2011, the treating orthopedic surgeon noted that the worker was having increased difficulty at work and was being placed on the waiting list for a total knee arthroplasty. On December 28, 2011, the worker advised that she had re-injured her left knee at work on December 25, 2011. On January 31, 2012, the worker's family physician noted that the worker reported increasing instability to her knee, and provided a note to reduce her position from .9 to .6 EFT.

On April 10, 2012, the worker underwent a left total knee arthroplasty. The worker began post-surgery physiotherapy on April 25, 2012, and was seen by the treating orthopedic surgeon at follow-up appointments on June 13 and September 12, 2012. At a further follow-up appointment on October 9, 2012, the treating orthopedic surgeon advised the WCB that the worker was able to participate in a return to work program.

On October 29, 2012, the worker began a graduated return to work program, with reduced hours and temporary restrictions of no deep squatting, no kneeling, no stairs, avoid lifting and pushing heavy carts and stretchers, and able to take breaks when needed. On February 15, 2013, the worker's family physician confirmed that the worker could return to her previous full duties in a .6 EFT position. On March 20, 2013, the WCB advised the employer that the worker's permanent restrictions were normal duties at .6 EFT and queried if the employer could accommodate duties at .4 sedentary. On April 15, 2013, the WCB's Compensation Services advised the worker that the employer was unable to accommodate her in a .4 sedentary position and the WCB would be covering her wage loss based on that level of employment.

On May 24, 2013, the worker's file was reviewed by a WCB medical advisor. The medical advisor noted that the most current clinical findings regarding the worker's left knee were in a February 19, 2013 physiotherapy discharge report, where full range of motion and strength of the left knee were noted, and opined that the clinical findings did not support a requirement for a reduction in workplace hours.

On August 16, 2013, the worker contacted her WCB case manager to advise of changes in her workplace, where all full-time nursing positions were being eliminated as of October 26, 2013 and nurses could apply for a .8, .6 or .5 position. Due to her seniority and as she was considered a full-time employee, she could apply for a .8 position. The worker noted that she had permanent restrictions to work at .6. On October 1, 2013, the employer advised the WCB that the worker applied for and received a .5 permanent position as of October 27, 2013. In a May 1, 2014 note to the WCB case manager, the worker indicated that she had been accommodated to a .6 EFT.

On October 15, 2013, the worker's family physician submitted a report, together with a letter outlining as restrictions that the worker "… is fit to work a 0.6 EFT with no night shifts or lower staff ratio increasing the risk of injury. Not to over take shift care of more than 27 residents. No overtime. No mandating. No doubling up on duties. No deep squatting or kneeling. Avoid lifting, pushing heavy carts and stretchers. No extended standing. Able to take breaks for position changes. No more than three shifts in a row with at least two days off between stretches."

On December 27, 2013, the worker's file was reviewed by a WCB orthopedic consultant, and on January 6, 2014, Compensation Services advised the worker that they were unable to accept her physician's restriction to only working a .6 position. Compensation Services found that medical information suggested she was capable of resuming her pre-accident duties within the scope of her pre-accident EFT position, and that her wage loss benefits would be payable to January 13, 2014.

On May 1, 2014, the worker submitted a medical note from her family physician indicating a restriction in her shifts to a maximum of three shifts on, and at least one shift off in between. On July 9, 2014, Compensation Services advised that they had reviewed the April 15, 2014 medical note and there was no change to their January 6, 2014 decision.

On May 20, 2015, the worker's union representative contacted the WCB and requested reconsideration of the January 6, 2014 decision to end partial wage loss benefits. On June 8, 2015, Compensation Services advised the worker's representative that the decision remained unchanged.

On March 19, 2018, the worker's union representative requested that Review Office reconsider Compensation Services' January 6, 2014 decision. It was submitted that the worker's claim was complicated; that the medical documentation both before and following the total knee replacement continued to recommend that she work at .6 EFT only, based on her tolerance and endurance, and the worker was entitled to ongoing partial wage loss benefits past January 2014.

On May 25, 2018, Review Office determined that there was no entitlement to benefits beyond January 13, 2014. Review Office found that the worker made a satisfactory recovery from her knee difficulties after the total knee replacement in April 2012. Review Office stated that by February 2013, the treating physiotherapist reported that the worker's knee was strong and stable, her family doctor recommended a return to her full duties at reduced hours, and the worker had worked reduced hours for approximately 14 months.

Review Office accepted and placed weight on the December 27, 2013 opinion of the WCB's orthopedic consultant that the reduction in the worker's hours which was introduced by the worker's family physician was not based on clinical evidence. Review Office found that the file evidence did not support that the worker required a restriction on her hours of work related to the workplace injury beyond January 13, 2014, and that the worker did not have a loss of earning capacity beyond that date.

Review Office added that this was a point in time decision, specific to Compensation Services' January 2014 decision. Review Office noted that the worker's doctor reported that the worker was having increased difficulties in October 2017. The worker underwent further knee surgery on April 17, 2018 which was authorized by the WCB and full wage loss benefits were reinstated effective the date of surgery. Review Office stated that their decision did not stop the worker from pursuing wage loss benefits prior to April 17, 2018, as their decision did not speak to the change in condition of the worker's knee as noted by her doctor in October 2017.

On August 23, 2018, the worker's union representative appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On September 18, 2019, the appeal panel met to discuss the case further and render its final decision on the issue 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.

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.

Worker's Position

The worker was represented by a union representative, who made an oral presentation, a written copy of which was also provided to the panel at the hearing. The worker provided additional evidence and comments, and responded to questions from her representative and from the panel.

The worker's position was that she is entitled to ongoing partial wage loss benefits past January 2014 as a consequence of her compensable injury.

The worker's representative noted that at the time of her injury, the worker was working full-time, which included 12-hour shifts. Following her February 6, 2008 compensable injury, she tried to work full-time hours (at 8-hour, not 12-hour shifts), but was only able to do so for 8 months, from November 2009 to July 2010. She worked .9 EFT from August 2010 to December 2011, then sustained a re-injury and was reduced to .6 EFT in February 2012. Following knee replacement surgery in April 2012, she started a gradual return to work and returned to working .6 EFT in February 2012.

The worker's representative submitted that the worker did not voluntarily choose to reduce her earnings by working a .6 position. The representative stated that an important factor in this case is that the worker has a wealth of knowledge and experience as a professional nurse who worked in a large number of specialized areas prior to her injury, and understands injuries and treatment recovery processes. It was submitted that the worker's high level of training and expertise enabled her to fully participate in her rehabilitation, and that the worker demonstrated a commitment throughout to maintaining employment as a nurse while also managing her health.

The worker stated that she is on her feet for most of her shift, and indicated that the .6 EFT is based on her experience that if she were to work more, she would have an increase in pain, swelling and stiffness, would "start limping and then have to start looking at bracing or tensoring to work." The worker said that "if I get increased pain and swelling, it is quite a remarkable swelling…"

The worker said that she "did not ask to voluntarily go down to begin with. That was a medical due to the degeneration of the original injury prior to the knee replacement. I was wearing a brace almost 24 hours a day. I was wearing a brace every time I went to work for four years…from 2008 into 2012."

The worker said that the concern she had was that with increased walking, crouching and bending "… I do get increased swelling. There is increased pain which is…subjective but the swelling can be quite traumatic."

The worker stated that you learn not just as a professional, but personally, "you know when you're starting to feel the swelling, it's an internal and then it goes external where I get the edema…And like I said, as a nurse, I knew when to push people for rehab, but also when not to push them so you don't…disturb their recovery while they're doing their rehab, and I tried to maintain the same with myself."

The worker's representative submitted that the worker's family physician, who had treated the worker for years and assessed her in person, consistently recommended since 2012 that she continue to work a .6 position, based on her tolerance and endurance.

It was submitted that although the WCB's orthopedic consultant noted a reduction in work hours was not needed in cases of uncomplicated knee replacements, file information suggested that the worker's injury would be complicated and should not be categorized under the recovery expectations of an uncomplicated claim. The representative noted that while the WCB's orthopedic consultant also stated that the family physician's opinion appeared arbitrary and not based on clinical evidence, considering that the worker "was managing full hours prior to the knee replacement surgery," the worker was actually working .6 EFT at eight hours, not full-time, prior to the surgery, and had not worked full-time since July 2010.

The worker's representative submitted that it would have been prudent for the WCB to arrange an in-person assessment of the worker, through a call-in examination or a functional capacity assessment, before ending wage loss benefits which had been in place since 2010, particularly since the WCB's own doctors had previously indicated that the worker's restrictions were permanent.

The worker's representative noted that the WCB consistently covered the worker's pain medication, even after her wage loss benefits ended, which suggested that the WCB accepted that her ongoing pain was related to her compensable injury. The representative submitted that it seemed reasonable that if the WCB was acknowledging her ongoing pain, they would continue to accept partial wage loss as a result.

In conclusion, the worker's representative submitted that since sustaining her compensable injury, the worker has demonstrated she is motivated to return to work and has persisted in a variety of return to work plans. She has been compliant and a full participant in her return to work plan, and in many ways "part of the driving force of it." The medical recommendation to remain at .6 has been consistent since 2012, and working a .6 position has enabled her to continue working as a nurse while managing her symptoms related to the compensable injury.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after January 13, 2014. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a further loss of earning capacity after January 13, 2014. The panel is unable to make that finding, for the reasons that follow.

The panel notes at the outset that as previously indicated, the decision under appeal was a point in time decision specific to Compensation Services' January 6, 2014 decision and did not speak to a possible live issue relating to a change in condition of the worker's knee as noted by her doctor in October 2017. The panel also notes, and the worker's representative acknowledged at the hearing, that the appeal to Review Office and their decision dealt only with the number of hours the worker could work, or partial wage loss based on the .6 EFT, and did not deal with any other physical restrictions, including kneeling or crouching.

The panel notes that the evidence shows that following her injury and original surgery in September 2008, the worker returned to working full-time hours for 8 months, after which her hours were reduced to .9 for 17 months, then to .6 in February 2012. Two months later, in April 2012, the worker underwent a left total knee arthroplasty.

Information on file indicates that the need for a total knee replacement had been anticipated. In the operative report from the original reconstructive surgery on the worker's left knee on September 16, 2008, the treating orthopedic surgeon had therefore indicated that the surgery would "not solve this woman's knee problem and she will likely require a total knee arthroplasty."

The panel finds that an explanation as to why the worker was unable to work more than a .6 following knee replacement surgery is lacking. The worker began a return to work program 6 months after that surgery, and 4 months after that the worker's family physician confirmed that she could return to her previous full duties in a .6 position.

The panel acknowledges the worker's concerns and complaints with respect to knee issues (pain, swelling and edema with overuse), but finds that the medical evidence on file does not support that she was reporting to her treating healthcare providers that she was having difficulties with such issues following her total knee arthroplasty in April 2012, nor were there clinical findings to that effect at the worker's multiple appointments between 2012 and 2014.

Rather, the medical evidence indicates that the knee replacement surgery was a success. The Discharge Assessment report from the treating physiotherapist dated February 19, 2013 therefore described the worker's status at discharge as "Excellent result. Knee strong + stable."

The February 6, 2014 report from the treating orthopedic surgeon, who saw the worker in follow-up ten months after the total knee replacement, also reported that the worker was "Making excellent progress" and opined that there was an "Overall excellent result." While the surgeon noted that the worker "has concerns about return to work", including with respect to "her ability to return to more than a 0.6 shift and about mandating overtime," he does not indicate that such a restriction is required.

The panel notes that there is an indication in a January 14, 2014 chart note from the worker's family physician that the worker "Has had some issues with adhesions. Still has ongoing issues" and that the physician was therefore ordering an x-ray on the worker's left knee and referring the worker to the treating orthopedic surgeon. The panel further notes that the x-ray results were found to be normal, showing "No complications are seen. There is no change from October 2012" and as indicated above, the orthopedic surgeon reported on February 6, 2014, that the results were excellent.

The worker stated at the hearing that her family physician, orthopedic surgeon and physiotherapist had been assessing her as well. As a result, the panel requested and was provided with chart notes from the worker's family physician from April 1, 2012 to December 31, 2014. The panel carefully reviewed those chart notes, but was unable to identify clinical assessments or other information supportive of a .6 or other restriction in the worker's hours.

Based on our review of all of the information on file and as presented at the hearing and provided subsequently at the panel's request, the panel finds that the .6 restriction was largely based on the worker's concerns and requests as opposed to being medically indicated or required.

In conclusion, the panel finds, on a balance of probabilities, that the worker did not suffer a further loss of earning capacity after January 13, 2014 in relation to the February 6, 2008 workplace accident. The panel therefore finds that the worker is not entitled to wage loss benefits after January 13, 2014.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of October, 2019