Decision #81/20 - Type: Workers Compensation
The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss benefits after August 8, 2019 and that she is not entitled to additional medical aid benefits. A teleconference hearing was held on June 25, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after August 8, 2019; and
Whether or not the worker is entitled to additional medical aid benefits.
The worker is entitled to wage loss benefits after August 8, 2019; and
The worker is entitled to additional medical aid benefits.
The employer filed an Employer’s Accident Report with the WCB on August 30, 2019 reporting the worker injured her right thigh in an incident at work on August 8, 2019. The employer reported the worker sustained a “small bruise” on her right thigh when the hand rail she was leaning on “…moved causing the unbolted hand rail below to fall, which came into contact with her right thigh…”. The worker submitted a Worker Incident Report to the WCB on September 13, 2019 reporting the injury to her right knee and describing “I was leaning against the railing of the tower. The right side of the railing fell down onto my knee.”
When the WCB spoke to the employer on September 13, 2019 regarding the worker’s claim, the employer confirmed the worker’s supervisor witnessed the incident and noted that after the incident, the worker continued with her job duties unassisted and without complaint until August 30, 2019 when she sought medical treatment. The WCB discussed the claim with the worker on September 13, 2019 and confirmed the mechanism of injury. The worker advised that she sought medical treatment on August 29, 2019 and was given restrictions and again on September 13, 2019, with further restrictions recommended. The worker noted that she had not missed any time at work and continued to work modified duties.
The employer provided the WCB with a copy of a note from the worker’s physician dated August 30, 2019 indicating the recommendation that the worker “…has to work modified duties for 4 weeks with maximum standing or walking for 1 hour at once and a total of 4 hours daily”. The employer also provided a Functional Capacities Form, dated August 29, 2019, noting the worker’s restrictions and a copy of the employer’s Modified Work Offer, signed by the worker on August 30, 2019.
On October 2, 2019, the WCB received the Doctor’s First Report from the worker’s treating family physician for her appointment on September 11, 2019. The worker reported to the physician that a metal railing struck her right knee approximately 5 weeks prior and that she had right knee pain. The treating physician diagnosed the worker with a right knee sprain and recommended the worker avoid prolonged standing.
In a report from the worker’s follow-up with another physician on September 13, 2019, the physician noted the worker’s report that she was unable to walk on her right knee and reported a normal examination but recommended a restriction on walking.
On October 7, 2019, the WCB advised the worker that her claim was accepted for injury to her right knee that occurred at work on August 8, 2019; however; the medical information provided on the worker’s file indicated she had recovered from the injury and she was not entitled to wage loss benefits after August 8, 2019.
The worker requested reconsideration of the WCB’s decision to Review Office on November 4, 2019. In her request, the worker noted her healthcare providers recommended restrictions on standing and walking and that she continued to experience symptoms in her right knee. On November 26, 2019, the worker provided Review Office with further information on her appeal. On December 6, 2019, the worker provided Review Office with time slips and photographs of her right knee taken after the workplace accident.
On January 2, 2020, Review Office determined the worker was not entitled to wage loss benefits after August 8, 2019. Review Office found the worker’s requirement for workplace restrictions three weeks after the workplace accident was not related to the workplace injury but to a non-compensable health issue that the worker had advised the employer of on August 16, 2019. Further, Review Office noted the September 11, 2019 medical report indicated no swelling, redness or limitation in range of motion in the worker’s right knee and did not support the need for workplace restrictions. Review Office also found that the worker was able to continue her regular duties after the August 8, 2019 workplace accident and noted that when the employer offered alternate duties, it was due to a lack of work in her regular duties not as a result of her compensable injury.
The worker filed an appeal with the Appeal Commission on February 4, 2020. A teleconference hearing took place on June 25, 2020.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.
When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to compensation under s 4(1) of the Act. That compensation includes wage loss, medical aid and awards for permanent partial impairment, as set out in s 37 of the Act:
37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:
(a) medical aid, as provided in section 27;
(b) an impairment award, as provided in section 38; and
(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.
Entitlement to wage loss benefits is addressed in s 4(2) of the Act which provides that wage loss benefits are payable for loss of earning capacity resulting from an accident. Section 39(2) of the Act sets out that wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.
Section 27(1) of the Act provides the WCB with authority to provide the worker with medical aid as is "…necessary to cure and provide relief from an injury resulting from an accident."
The WCB has established Policy 22.214.171.124, Pre-existing Conditions (the “Policy”) to outline its approach in terms of addressing eligibility for compensation benefits under the Act where a worker has a pre-existing condition. The Policy sets out that when a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury. When it is determined that a worker’s inability to work is a result of a compensable injury and evidence suggests, on a balance of probabilities, that the compensable injury, or the compensable injury in concert with the pre-existing condition, is causing the on-going loss of earning capacity the WCB would pay so long as the loss of earning capacity continues.
The worker represented herself on the appeal, providing the panel with an oral submission and answering questions put to her by panel members.
The worker indicated that she is seeking wage loss benefits for those days when she missed work to attend medical appointments related to the injury sustained on August 8, 2019. She is also seeking medical aid related to the injury that occurred on August 8, 2019 including coverage for resulting physiotherapy.
The worker outlined her job history with the employer, noting that she was hired in April 2019 for a certain role, but that she spent most of the summer working in another role. She stated that the week of the accident, she was working in yet another new role and that she had not been trained in safety measures for this position. The worker described to the panel how the accident occurred and noted that she was injured when a railing fell onto her right knee. She stated that initially she didn’t experience pain but on going to sleep that evening, was in a lot of pain.
The worker described the site of the injury as being swollen for three days following, and bruised for approximately three weeks, referencing the photos she took of the bruising as found in her WCB claim file. Because her usual work duties were mostly sedentary, she was able to continue working until late August 2019, at which time the employer advised she would need to move into another position that involved more standing. The worker explained that at that time, she sought medical attention because she was concerned about her ability to take on the new duties due to the ongoing pain she felt on standing.
The worker advised the panel that when she sought medical attention for her right knee, she was advised to treat the injury with ice, rest and elevation and to obtain physiotherapy. She was not able to access physiotherapy initially as the WCB did not provide coverage but started in early December 2019. That therapy ended with the onset of the COVID-19 pandemic and at the time of the hearing had not yet resumed. The worker explained that she still experiences flare-ups of pain in her right leg radiating from her hip to her foot when she is on her feet too much.
The worker confirmed to the panel that she had no prior injury to her right knee. On questioning, she explained that although she previously had experienced a non-compensable foot condition, she had not experienced any flare-ups of that condition in the previous two years.
The worker’s position, in sum, is that as a result of the compensable injury sustained on August 8, 2019, she experienced a loss of income earning capacity on the dates when she was required to attend for medical attention and further, that she required medical aid to address the effects of the compensable injury.
The employer was represented in the hearing by its Health and Safety Manager, who made oral submissions on behalf of the employer, and provided answers to questions posed by panel members.
The employer’s representative noted that although the employer’s training program includes information on expectations of workers when they are injured, the worker here did not seek any medical attention until several weeks following the workplace accident.
The employer does not dispute that the event occurred but noted that the worker was able to continue her work duties until late August. Further, the employer was able to accommodate the worker with modified duties until she was laid off in October 2019. The employer understood that the worker was medically cleared to work at that time.
The employer’s position is that the worker should not be entitled to wage loss benefits after August 8, 2019 or to medical aid as there was no loss of earning capacity or demonstrated need for medical aid as a result of the relatively minor injury that occurred on August 8, 2019.
In order for the worker's appeal to succeed, the panel must find that the worker experienced a loss of earning capacity as a result of the compensable injury, and that she required medical aid to cure and provide relief from the compensable injury beyond August 8, 2019. On the basis of the evidence before us and for the reasons that follow, the panel was able to make such findings.
The panel considered the evidence in the file documents as well as the information provided by the worker and the employer’s representative in the hearing. The panel carefully reviewed the medical reporting on file and noted that although the worker did not initially seek medical attention, when she did ultimately do so, it was in relation to a right knee injury arising out of the accident of August 8, 2019 as reported to the employer and the WCB.
Initially, when the worker first sought medical attention on August 29, 2019, the attending physician completed the employer’s modified duties form, indicating restrictions on the worker’s activities relating to crouching, climbing ladders and stairs, kneeling, standing, walking and lifting. These were to be reassessed after 4 weeks, at which time it was expected she would be able to return to regular duties. The Doctor First Report arising out of the examination of September 11, 2019 sets out a diagnosis of a right knee sprain and notes the worker’s report of ongoing right knee pain. The worker saw another doctor on September 13, 2019 who noted her complaint relating to walking on her right knee and recommended modified duties with a restriction on walking for four weeks. On examination on September 27, 2019 the worker again reported right knee pain with standing and walking. Clinical findings at this time were tenderness at the lateral ligament area with mild clicking, and an MRI was ordered. The physician recommended limited standing and walking for a further 8 weeks. Ultimately, the MRI study of February 24, 2020 demonstrated normal findings and a narrative physiotherapy report of March 20, 2020 contains the conclusion that “…there was likely a soft tissue contusion at the time of injury that has led to deconditioning and chronic pain.”
The panel noted as well that although the worker did reference her non-compensable pre-existing foot condition in a text message to the employer on August 16, 2019, there is no reference in any of the medical reporting on file to this condition. Further, the worker testified that she had not had any flare-up of that condition in the previous two years. The panel therefore finds on a balance of probabilities that the worker was not seeking medical attention for and did not require work restrictions or miss work as a result of this pre-existing condition.
Although there is limited medical reporting information available from the weeks immediately following the compensable injury, the panel is satisfied on the basis of the medical information that is available and the worker’s own testimony that the injury to the right knee sustained by the worker on August 8, 2019 resulted in a need for ongoing medical aid to cure and provide relief to the worker and further, that as a result, the worker experienced some loss of earning capacity relating to her attendance at medical appointments.
The panel therefore determines, on a balance of probabilities that the worker is entitled to wage loss benefits after August 8, 2019 and is entitled to additional medical aid benefits.
The worker’s appeal is allowed.
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 August, 2020