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 after October 23, 2019. A teleconference hearing was held on April 21, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after October 23, 2019.

Decision

The worker is entitled to wage loss benefits after October 23, 2019.

Background

The worker filed a report with the WCB on June 19, 2015 setting out that he injured his left knee at work on June 16, 2015 when he “…stepped on a rope and twisted my left knee…I heard a pop in my left knee as well.” The WCB accepted the worker’s claim on June 30, 2015.

On July 14, 2015, the worker was assessed by an orthopedic surgeon who noted that in addition to the recent twisting injury to the worker’s left knee, an x-ray taken June 18, 2015 revealed osteochondral defect of the lateral aspect of the medial femoral condyle in that knee. The surgeon recommended an arthroscopy of the worker’s left knee to identify and remove any unstable osteochondral fragments. The surgeon also recommended an MRI study, which was conducted on August 11, 2015.

A WCB medical advisor reviewed the worker’s file, including the August 11, 2015 MRI report on August 14, 2015 and provided an opinion that the diagnosis in relation to the June 16, 2015 workplace accident was a left knee sprain, with a natural history of recovery of 2-8 weeks, slightly longer in the environment of the worker’s pre-existing condition.

The employer was advised on August 18, 2015 of the worker’s temporary restrictions to avoid walking on uneven surfaces, avoid ladder climbing and maximum lift/carry should be no greater than 40 pounds and on September 3, 2015, the employer advised they could not accommodate these restrictions.

After the worker’s assessment on September 1, 2015, the WCB received further information from the worker’s treating orthopedic surgeon. A WCB medical advisor reviewed the information on October 7, 2015 and recommended the worker be sent for a second consultation with an orthopedic surgeon specializing in knees. On the basis of that consultation, on October 27, 2015, a second orthopedic surgeon reported that the “MRI scan of the knee has shown an osteochondral lesion in the left medial femoral condyle. This needs to be addressed surgically. We have offered him left knee arthroscopy and fixation of the osteochondral lesion….”

A WCB orthopedic consultant reviewed the report on November 5, 2015 and the proposed surgery was approved by the WCB. The worker underwent a left knee scope, debridement of medial femoral condyle and fixation of OCD fragment with two headless compression screws on January 11, 2016. Due to limited recovery and continued complaints of residual swelling and pain, approval for a second arthroscopy was requested by the worker’s treating orthopedic surgeon on April 12, 2016.

On May 5, 2016, the WCB discussed the worker’s claim with the employer. After the WCB advised the employer the worker would likely require long term restrictions, the employer confirmed that they would not be able to accommodate the worker, even with retraining offered by the WCB. The WCB advised the employer the worker would be referred for vocational rehabilitation services.

The worker underwent a right knee scope, removal of two screws, debridement of plica and debridement of femoral condyle on June 2, 2016. The WCB orthopedic consultant who reviewed the surgical report on June 23, 2016 recommended temporary restrictions of: avoid walking on rough or very uneven ground; avoid continuous walking over 30 minutes without opportunity to rest; stairs with handrails as tolerated; avoid ladder use; avoid prolonged static crouch, kneel and/or crawl positions; and avoid occasional lifts floor to shoulder and above over 40 pounds, frequent over 20 pounds. On January 6, 2017, the WCB orthopedic consultant outlined the worker’s permanent restrictions of minimal running and no running on rough/uneven surfaces; stairs carrying maximum weight of 25 pounds; avoid ladder use and avoid prolonged static crouch, kneel, crawl positions.

Based on the worker’s interests and educational abilities and taking into consideration the worker’s permanent restrictions, a Vocational Rehabilitation Plan for National Occupational Code (NOC) 1114 – Other Financial Officers was developed by the WCB on February 16, 2017 to be completed by December 2019.

On July 13, 2017, the worker contacted the WCB to advise he was experiencing an onset of symptoms in his left knee. After a July 18, 2017 follow-up appointment with his treating orthopedic surgeon, further arthroscopy on the worker’s left knee was recommended on a “semi-urgent basis”. The WCB approved the surgery on August 8, 2017 and on August 31, 2017, the worker underwent a left knee scope, removal of large loose body as well as debridement of the medial femoral condyle. The treating orthopedic surgeon recommended a further surgery on January 30, 2018. This was approved by the WCB on February 15, 2018 and the worker underwent a left knee scope, removal of loose body followed by open osteochondral allograft to medial femoral condyle using a fractured osteochondral allograft on May 7, 2018.

Upon completion of the worker’s educational training, the Vocational Rehabilitation Plan was updated to NOC 1434 – Banking Insurance and other Financial Clerks on April 15, 2019 and the end date for the worker’s vocational rehabilitation plan was set for September 16, 2019, including a job search period.

On June 5, 2019, the worker attended at the WCB assessment for permanent partial impairment (“PPI”). On June 11, 2019 his file was reviewed by the WCB’s orthopedic consultant who recommended that a Functional Capacity Evaluation (FCE) be arranged to determine and update the worker’s restrictions as these had not been updated since January 10, 2017 and the worker had undergone further surgeries since that time.

The FCE took place on August 13 and August 30, 2019. Based on that assessment, the WCB orthopedic consultant provided an opinion that the worker no longer required the restrictions of minimal running and no running on rough uneven surfaces; avoiding ladder use; and avoiding prolonged static crouch/kneel/crawl positions. The WCB orthopedic consultant recommended permanent restrictions of both arms lift floor to waist, thigh to chest, waist to shoulder up to 90lbs; both arms carry up to 65lbs; both arms push/pull force up to 65/70lbs; and continuous sitting up to two hours with opportunity to change position. The orthopedic consultant opined that these new permanent restrictions meant the worker was capable of working in a medium to heavy classification.

On September 11, 2019, the WCB determined that the worker was capable of returning to his pre-accident duties within NOC 7611 (Construction labourer) and no longer had any loss of earning capacity. On September 18, 2019, the worker was advised of his updated permanent restrictions and on September 26, 2019, the WCB advised the worker that it determined, based on his updated permanent restrictions, he could return to his pre-accident profession. As he no longer had a loss of earning capacity, the worker advised he was not entitled to wage loss benefits after October 23, 2019.

The worker requested reconsideration of the WCB’s decision to Review Office on September 27, 2019 on the basis that his left knee injury left him unable to work within his previous occupation. On October 2, 2019, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation. The worker’s file was again reviewed by the WCB orthopedic consultant on October 23, 2019. The consultant confirmed the earlier opinion that the worker was capable of returning to his pre-accident occupation. On October 29, 2019, the worker was advised there was no change to the WCB’s earlier decision that he was not entitled to wage loss benefits after October 23, 2019.

On October 29, 2019, the worker requested reconsideration of the WCB’s decisions to Review Office noting that he was not capable of returning to his pre-accident occupation.

Review Office determined on December 10, 2019 the worker was not entitled to benefits after October 23, 2019. Review Office accepted the opinion of the WCB physiotherapy consultant who conducted the FCE, the WCB orthopedic consultant’s opinion and the worker’s own statements of his physical capabilities and found the worker was capable of returning to the job duties described for his pre-accident occupation in construction. Review Office noted that the worker’s only noted limitation with respect to his left knee was that the knee had slightly less range of motion than his right. Further, Review Office found that the worker did not require any physical restrictions regarding his left knee and as such, no longer had a loss of earning capacity.

The worker filed an appeal with the Appeal Commission on January 9, 2020. A teleconference hearing was arranged for April 21, 2020.

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 July 15, 2020, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

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:

Compensation payable 

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.

Worker’s Position

The worker appeared and made submissions to the panel on his own behalf. He also provided answers to questions posed to him by panel members.

The worker’s position is that he remains physically unable to return to his pre-accident occupation as a result of the accident of June 16, 2015 and continues to experience a loss of earning capacity resulting from that compensable workplace injury.

In his submission to the panel, the worker outlined that when the WCB revised his physical restrictions in August 2019, he believed initially that these were adequate but did not understand that this change would then also result in a determination that he was deemed able to return to his pre-accident work. He explained to the panel that he understood that the VR Plan implemented by the WCB would allow him to continue in suitable employment consistent with that plan and the training he had completed, and that he did not believe he would be deemed able to return to more physically demanding construction work.

The worker advised that he attempted a return to construction work with the employer in fall 2019 working on his days off for shortened shifts in home construction. While this was not grueling or heavy construction work, he noted he was not able to work at his pre-accident level and felt cramping and excruciating pain in his left knee again. The worker indicated the employer told him he would be a liability rather than an asset on the job site due to his reduced physical capabilities.

The worker advised the panel that based upon this experience he again consulted with the orthopedic surgeon in December 2019. At that time he was advised that he could not undertake work that required him to be on his feet and would need a sedentary job.

In response to questioning from the panel, the worker advised that his day to day activities are not challenging but that any prolonged activity or repetitive activity on his feet causes him pain in his knee. He explained to the panel that he does golf, but can no longer walk the course and must use a motorized cart. When he walks, his knee soon fatigues causing him to slow down and favour his right leg. If he has to stand in line, the knee fatigues. Kneeling on a hard surface causes significant pain and he therefore tries to avoid kneeling.

With respect to the FCE of July 11, 2019, the worker indicated he was disappointed with the report in that it made it seem like he could do more than he was capable of. He advised that he did not feel it was a fair evaluation of his physical capabilities as it was not a prolonged evaluation and did not assess for more repetitive, intense activities such as he would be required to undertake on a construction job site.

In sum, the worker’s position is that he is physically incapable of returning to his pre-accident occupation and that as a result, he remains unable to earn income at the same level as he did pre-accident. His continuing loss of earning capacity beyond October 23, 2019 is the result of the compensable injury sustained on June 16, 2015 and therefore he should be entitled to wage loss benefits after that date.

Employer’s Position

The employer did not participate in the appeal.

Analysis

In order to find the worker is entitled to wage loss benefits after October 23, 2019, the panel must find that the worker continued to experience a loss of earning capacity after that date as a result of the compensable injury. On the basis of the evidence before us, the panel was able to make such a finding for the reasons that follow.

The panel reviewed the medical findings with particular attention to those from after the worker’s most recent surgical intervention in May 2018. The treating orthopedic surgeon noted on follow up on September 5, 2018 that the worker was making good progress post-surgery.

When the WCB physiotherapy consultant reviewed the file in May 2019, the worker was determined to be at maximum medical improvement and a PPI examination was arranged. The examination notes from the June 5, 2019 PPI assessment note the worker’s report that his recovery was not complete, in that his left knee fatigued quickly and he had residual stiffness in the knee with difficulty kneeling. The physiotherapist found there to be a deficit of some 10% in terms of the worker’s range of motion in his left knee compared to the right knee. Based upon that assessment, the WCB orthopedic consultant determined that the restrictions should be reviewed and an FCE was arranged.

The panel reviewed the FCE report and noted that the assessment was of a general nature. The panel finds that this assessment was insufficient to assess whether or not the worker was in fact capable of returning to his pre-accident occupation in construction. The FCE assessment took place over a period of 1.5 hours, while the worker reported that a typical workday in his pre-accident position would be 10 hours. Further, while the report recorded the worker’s statements as to his functional capacity in relation to standing, walking, climbing stairs/ladder/scaffold, kneeling/crawling and crouching/squatting, it also notes that these were not objectively assessed.

The WCB orthopedic consultant, on the basis of the worker’s report during the FCE, on August 28, 2019 discontinued restrictions in relation to the worker running and walking, use of ladder, prolonged static crouch/kneel/crawl positions. In a memo to file dated October 23, 2019, the WCB orthopedic consultant noted that “…the “as stated” capacities are also congruent with the information supplied by the worker and are considered valid.”

It was around this time that the worker attempted a return to his pre-accident employment, on a part-time basis, based upon the WCB determination that he was capable of doing so. Two months later, the worker’s treating orthopedic surgeon, in a note dated December 24, 2019 outlined that the worker continued to report medial pain, swelling and an inability to undertake light or heavy activities where he is standing for a prolonged period. The orthopedic surgeon stated his view that the worker’s retraining should include a sedentary job where he is not on his feet or doing heavy work. At this appointment, the orthopedic surgeon requested a further MRI study of the worker’s left knee to assess “…for ongoing medial pain with a previous osteochondral graft to the medial femoral condyle.”

The MRI study of January 17, 2020 indicated an intact and well-incorporated osteochondral graft, with moderate arthrofibrosis in the infrapatellar fat pad and at the medial aspect of the suprapatellar pouch.

In a further report dated May 20, 2020, the treating orthopedic surgeon outlined that the worker continues to have ongoing pain, but has full range of motion and good muscle strength development. The surgeon disputed the MRI findings of arthrofibrosis, noting there may however be some scarring in the infrapatellar fat pad. There is also some chondromalacia “…just posterior to the graft on the medial femoral condyle which may be a cause of residual pain.” The surgeon concluded that the worker’s current condition “…is a result of his previous compensable injury. I think that he will have permanent restrictions for standing for prolonged periods of time, kneeling, squatting, climbing or twisting using the knee. This would put him in a situation where he needs a sedentary job.”

The panel notes that the conclusion reached by the treating orthopedic surgeon in May 2020 supports the information contained in a letter from the employer to the WCB dated January 11, 2020. In that letter, the employer described an attempt by the worker in October 2019 to return to light duties in his previous construction position. The employer stated:

“I had him on light duties, and he needed multiple breaks as his knee fatigued quickly. He attempted scaffolds multiple times, and verbally reported knee discomfort. I do not think he would be fit to go back to full-time construction duties at this time, and do not believe it would be safe for him to return to a full workload. He cannot perform at the same level as his pre-injury capability, and therefore no longer has the same earning potential.”

In this regard, the panel accepts the worker’s evidence as to his own physical capabilities, noting the worker’s testimony is consistent with the information provided by the employer as well as the assessment of the treating orthopedic surgeon.

The panel finds that despite multiple successful surgical procedures, the worker’s knee has not returned to its pre-injury status and accepts the opinion of the worker’s treating orthopedic surgeon that the worker’s current condition is the result of his compensable injury and that the worker will have permanent restrictions relating to standing, kneeling, squatting, climbing and twisting using his left knee.

On the basis of the evidence before us, the panel is satisfied, on a balance of probabilities that the worker is not physically capable of returning to his pre-accident work and that the worker’s current condition is the result of the compensable injury of June 16, 2015. Therefore, the panel concludes, on a balance of probabilities, that the worker’s loss of earning capacity beyond October 23, 2019 is the result of the compensable injury.

The worker is therefore entitled to wage loss benefits after October 23, 2019. The appeal is allowed.

Panel Members

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