Decision #17/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss benefits after April 7, 2013. A hearing was held on January 8, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after April 7, 2013.
The worker is not entitled to wage loss benefits after April 7, 2013.
The worker has an accepted WCB claim for a medial meniscus tear of her left knee that occurred at work on March 28, 2005. She underwent a partial medial meniscectomy and chondroplasty of her medial femoral condyle on September 12, 2005. Thereafter, she attended physiotherapy.
After the surgery, on November 10, 2005, a call-in examination was conducted by a WCB medical advisor and WCB physiotherapy consultant due to the worker's reported low back, hip and left knee issues. Following completion of a recommended four-week daily reconditioning program, the worker participated in a graduated return to work program beginning January 30, 2006 with reduced hours and restrictions in place until she returned to full regular duties on April 24, 2006.
The worker contacted the WCB on October 27, 2010 to advise that she had been experiencing increasing symptoms of pain in her leg. She noted that she was having difficulty with stairs, getting out of a chair and with walking with the pain going down her leg and into her ankle. The worker reported she had seen an orthopedic surgeon who took x-rays, noted that her joint space was down and recommended a brace for her knee. She advised that she had not sought any other treatment for her knee since 2006, except for massage therapy.
On November 19, 2010, the worker's treating orthopedic surgeon provided a report indicating that the worker had developed medial joint-line pain in her left knee that was being treated conservatively. X-rays revealed that the worker had developed moderately advanced osteoarthritis within the medial compartment of her left knee which the orthopedic surgeon opined was "…common after meniscectomy." The surgeon was of the view that the arthritis was related to the workplace injury in 2005. The orthopedic surgeon further provided that the worker's symptoms were not so severe that she required a knee replacement at that time; however, it was likely that she would in the future.
A WCB medical advisor reviewed the worker's file on December 16, 2010 and recommended workplace restrictions of no running or jumping, no kneeling, squatting or crawling and no walking or standing more than one hour without the opportunity to sit and rest. The worker returned to her full regular duties on February 15, 2011.
The worker contacted the WCB on January 13, 2012 to advise she had been terminated by her employer. On March 6, 2012, the WCB provided the worker with a letter advising that the proposed knee replacement surgery would be accepted and after the surgery, she would be placed on full wage loss benefits while she recovered. In the same correspondence, the WCB also notified the worker that her employment status with the employer could become a factor impacting her wage loss entitlement once she had recovered from the planned surgery and was determined to be fit to return to work, whether on modified duties or in a graduated return to work program.
On March 26, 2012, the worker's treating orthopedic surgeon advised the WCB that the worker's condition had deteriorated and due to the condition of the worker's knee, she was placed on the wait list for a knee replacement. The WCB approved the surgery on March 29, 2012, and on June 19, 2012, the worker underwent a total knee replacement. After the surgery, the WCB provided the worker with full wage loss benefits and medical aid benefits to attend physiotherapy.
At a post-surgical follow up on December 13, 2012, the orthopedic surgeon noted the worker had made "excellent progress" in her recovery, with increased range of motion, alignment and stability noted, and swelling nearly resolved. The orthopedic surgeon recommended that the worker start a graduated return to work in the new year, beginning with half days and gradually working up to full days over a period of months.
The worker's treating physiotherapist examined the worker on December 27, 2012 and also recommended a graduated return to work, while discharging her from further physiotherapy for the knee.
A WCB medical advisor reviewed the worker's file on January 10, 2013, and confirmed the orthopedic surgeon's recommendations for a graduated return to work at four hours per day, increasing by one hour per day every two weeks until the worker was working eight hours per day.
The WCB outlined this schedule for the graduated return to work in a letter to the worker dated January 11, 2013. The graduated hours would begin January 14, 2013 increasing until fulltime hours were reached by April 8, 2013, at which point all wage loss entitlement would end. The WCB confirmed that the employer had verified that, had the worker remained in their employ, suitable accommodation would have been found for her. Therefore, the wage loss benefits would be reduced by the income the worker would have earned had she remained employed, with incremental decreases in the benefits as hours were increased during the graduated return to work period.
The report of the treating orthopedic surgeon of July 18, 2013 indicates that the worker had virtually no pain, was walking without aids and that the surgeon was very satisfied with the outcome of the surgery. With respect to the worker's knee, the surgeon concluded she had "…made a full recovery and [was] able to resume a normal lifestyle."
On July 25, 2019, the worker requested Review Office reconsider the WCB's January 11, 2013 decision. She submitted a detailed chronology with her request, along with copies of documents related to her employment. Review Office also received further employment-related documentation from the worker on August 6, 2019, August 9, 2019 and August 17, 2019.
Review Office determined on September 23, 2019 that the worker was not entitled to wage loss benefits after April 7, 2013. Review Office found that the worker was accommodated by the employer for her compensable injury from January 2006 to April 2006 and again from November 2010 to February 2011 and as such, determined that the employer had an established return to work program and would have been able to provide suitable accommodation for the worker had her employment not been terminated. Further, the worker's orthopedic surgeon reported on December 13, 2012 that the worker's recovery had progressed sufficiently for a graduated return to work program to be implemented. A WCB medical advisor reviewed the recommendation and confirmed it was appropriate. On this basis, a start date and duration of the graduated return to work program was set by the WCB, with an end date of April 7, 2013. Review Office further found that the worker's treating orthopedic surgeon indicated on July 18, 2013 that the worker had made a full recovery from the workplace accident.
The worker filed an appeal with the Appeal Commission on October 17, 2019. An oral hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the Board of Directors.
Section 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. That compensation includes wage loss benefits. Wage loss benefits are addressed in particular in s 4(2) of the Act which indicates such benefits are payable for loss of earning capacity resulting from an accident. Section 39(2) of the Act provides for the duration of entitlement to wage loss benefits, as being payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years, whichever comes first.
The worker appeared before the panel representing herself. She provided a detailed written submission to the panel in advance of the hearing, together with copies of documents filed in the Court of Queen's Bench and Court of Appeal, relating to her labour relations issues. In the hearing, the worker made a comprehensive oral submission and also addressed questions put to her by panel members.
The worker, in her oral and written submissions, outlined for the panel, the timeline related to her WCB claim beginning with the injury that occurred on March 28, 2005. She provided the panel with additional details around the termination of her employment that occurred in March 2012 as well as the details of the subsequent legal proceedings that dealt with the labour relations issues arising from her termination.
With respect to her recovery from the June 19, 2012 knee replacement surgery, the worker noted that she complied with all recommendations from her treating medical professionals such that she exceeded recovery targets in respect of mobility, range of motion and extension.
The worker noted that the WCB file indicated on September 13, 2012 that the employer advised that the worker could be accommodated with sedentary duties. She stated her position that the employer failed to comply with its duty to accommodate under s 49.3(4) of the Act and that the employer failed to pay her the difference between the wage loss benefits paid to her by the WCB during the graduated return to work process, and her full-time salary.
The worker stated that there should be entitlement to wage loss benefits after April 7, 2013 because the employer did not accommodate her and did not provide any contribution to her wages in the graduated return to work period from January 14, 2013 through April 7, 2013. Further, the worker's view was that she should receive wage loss benefits because the labour relations proceedings were ongoing through the balance of 2013.
The worker confirmed, in answer to questions posed to her by panel members, that by April 2013 she was feeling better other than in respect of her hip and lower back. She stated that she was ready to go back to work as of April 5, 2013 and confirmed that the comment to the effect that her knee was doing better, as set out in the WCB File Memo of the same date, was accurate and correct.
The employer did not participate in the appeal.
The only question for the panel to determine on appeal is whether the worker is entitled to wage loss benefits beyond April 7, 2013. In order to find that the worker is entitled to such benefits, the panel would have to find that she continued to experience a loss of earning capacity resulting from an accident after April 7, 2013. The panel was not able to make that finding, for the reasons that follows.
As set out above, s 39(2) of the Act provides for the duration of entitlement to wage loss benefits, as being payable until the worker's loss of earning capacity ends. If there is no longer a loss of earning capacity as a result of a compensable injury arising out of a workplace accident, then there is no entitlement to further wage loss benefits.
The panel noted the worker's position that the employer was in breach of its obligation to accommodate her pursuant to s 49.3(4) of the Act. The panel notes however that this provision was not in effect until the Act was amended by S.M. 2005, c. 17, s 33. The amending legislation indicates, in s 83(1), that it comes into force on a day to be fixed by proclamation, and applies to accidents that occur on or after that day. Section 33 of the amending legislation was proclaimed in force effective January 1, 2007. The provision relied upon by the worker was not in effect at the date of her accident and does not apply to her claim.
The panel considered and gave particular weight to the medical findings in the period leading up to and following the termination of the worker's wage loss benefits on April 7, 2013. The worker's treating orthopedic surgeon reported on the excellent progress the worker had made in recovery from the June 19, 2012 knee replacement surgery. Clinical findings included good range of motion and that the swelling had almost completely resolved. The orthopedic surgeon at that time recommended that a graduated return to work take place early in 2013.
The recommendations and findings of the treating orthopedic surgeon were reviewed and confirmed by the WCB medical advisor on January 10, 2013. The WCB medical advisor recommended a graduated return to work of four hours per day, increasing by one hour per day every two weeks until the worker was working eight hours per day. As a result of this review, the WCB determined on January 11, 2013, that a graduated return to work period would commence January 14, 2013 with hours increasing until fulltime hours were reached by April 8, 2013.
On April 5, 2013, the worker advised the WCB case manager that her knee was "fine" although she was having difficulties with her opposite hip and was doing exercises to remedy that concern. The worker confirmed to the panel that this was true and accurate, although noting she continued to experience problems with her lower back and hip at that time.
The panel noted that WCB file memos outline further conversations between the WCB case manager and the worker on May 10 and May 30, 2013. In each of these, the worker is reported to have referenced left hip pain. In a further conversation with the WCB case manager on June 18, 2013, the worker is reported to have confirmed she stopped physiotherapy for her hip, is sleeping better and that her knee pain is resolved. The worker confirmed in her testimony that in April 2013 she was receiving physiotherapy treatment for only her hip in physiotherapy and that she stopped receiving physiotherapy for her hip on June 18, 2013.
With respect to the worker's hip and lower back issues ongoing in April 2013, the panel notes that the medical reports on file indicate that the worker began to complain of lower back and right hip issues in 2005 but that these were viewed as non-compensable issues. For example, the WCB chiropractic advisor, on April 7, 2006, opined that the worker's lower back pain related to pre-existing factors and was not related to the compensable knee injury.
Further, the panel notes here were no medical restrictions in place as of April 7, 2013 that would have prevented or limited the worker's return to full-time employment at that time.
The panel therefore concludes that, on a balance of probabilities, the worker did not sustain a loss of earning capacity after April 7, 2013. Therefore, the worker is not entitled to wage loss benefits after April 7, 2013.
The panel takes no position with regard to her assertion she is entitled to further wage loss benefits during her graduated return to work period as that occurred prior to April 7, 2013 and has not been reviewed by the WCB. Based on both these factors, the panel has no jurisdiction to rule on them.
The appeal is dismissed.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 14th day of February, 2020