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 benefits beyond May 30, 2019. A teleconference hearing was held on August 13, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after May 30, 2019.

Decision

That the worker is entitled to benefits after May 30, 2019.

Background

On February 26, 2019, the worker reported to the WCB that she injured her head and left knee at work on February 22, 2019, when she was pushing a cart with a heavy container on it and the front wheels got stuck, causing her to "…to fly up and over and hit the nearby table." She reported she had "Instant pain to my head & knee." She said she iced her knee and stayed at work for approximately 20 minutes, then her employer sent her by taxi to a nearby walk-in clinic. The walk-in clinic physician noted left-sided head pain, no headaches or nausea, normal vision and left knee pain, and diagnosed her with a soft tissue injury to the head and left knee.

On February 26, 2019, the worker was seen by a sports medicine physician, who noted that the worker reported she did not lose consciousness after the workplace accident, and that she had some nausea and photophobia and a headache on the left side of her head. With respect to her left knee, the sports medicine physician noted swelling with tenderness over the medial joint line and anterior knee. X-rays were taken of the worker's left knee and cervical spine, both of which indicated no issues. The physician diagnosed the worker with mechanical cervical pain, a concussion and a left medial and meniscal tear. The physician referred the worker for a CT brain scan and an MRI of the left knee, and recommended she remain off work to March 13, 2019. On February 28, 2019, the WCB's Compensation Services advised the worker that her claim was accepted and wages loss benefits were authorized.

A CT scan of the worker's brain was performed March 12, 2019, and showed a "…small area of decreased attenuation involving the right frontal lobe…" which was noted by the radiologist to be possibly artifactual in nature or possibly a small non hemorrhagic area of post-traumatic cortical contusion. An MRI was recommended for further evaluation.

On April 1, 2019, the worker attended a follow-up appointment with the sports medicine physician. The physician noted that the worker reported "…her shoulder started hurting recently," and provided a new diagnosis of a right shoulder rotator cuff strain/tear. An x-ray was taken of the worker's right shoulder, which showed no evidence of a fracture or dislocation.

An MRI of the worker's left knee performed April 3, 2019 showed "…moderate chondromalacia of the medial facet of the patella" but was otherwise unremarkable. On April 4, 2019, a WCB medical advisor reviewed the worker's file and recommended restrictions of no prolonged standing/walking; no kneeling/squatting/crouching; no lift/push/pull greater than 5 to 10 pounds; and no repetitive lift/push/pull. The restrictions were provided to the employer on April 10, 2019.

Also noted to file on April 10, 2019 was a witness statement from a co-worker, who advised that he recalled the worker walking slowly past him as she was pushing a cart, then realized she fell, hitting her head on a metal table and landing on her knees. The co-worker could not recall whether the worker made any complaints about her shoulder, only that her knee and head hurt.

On April 10, 2019, Compensation Services advised the worker that based on the medical information on her file, the reported mechanism of injury, and the opinion of the WCB medical advisor, her accepted diagnosis in relation to the February 22, 2019 injury was minor contusion head injury, left knee sprain/strain and neck sprain/strain with no evidence of cervical radiculopathy. Compensation Services advised that a concussion was not accepted, as her treating healthcare providers all reported a normal neurological exam. The worker's right shoulder difficulties were also not accepted.

On April 29, 2019, the worker attended an initial assessment with a physiotherapist, who diagnosed her with a left knee strain. The physiotherapist recommended restrictions of no standing for longer than 30 minutes, no crouching and no uneven surfaces. At a subsequent appointment on May 8, 2019, the physiotherapist noted that the worker reported improved range of motion and swelling, with pain proportional to weight bearing and use and provided updated restrictions of no repetitive crouch/squat, breaks as needed and a maximum 4-hour shift. The restrictions were provided to the employer on May 10, 2019.

On May 23, 2019, the worker's file was reviewed by a WCB orthopedic consultant, who opined that a diagnosis of head and left knee contusions was appropriate, "…with no longer term issues anticipated." The consultant further opined that at three months post workplace accident, a return to normal work-related duties was appropriate. On May 24, 2019, Compensation Services advised the worker that they had determined she was capable of performing her pre-accident duties and her entitlement to wage loss benefits would end as of May 30, 2019.

On June 3, 2019, the worker requested that Review Office reconsider Compensation Services' decision. Included with her request for consideration was a May 31, 2019 medical note from her treating sports medicine physician and a May 27, 2019 chart note from her treating physiotherapist. Further medical reports were received from the worker's sports medicine physician and reviewed by the WCB, and on July 8, 2019, Compensation Services advised the worker that the May 24, 2019 decision remained unchanged.

On July 24, 2019, Review Office determined that there was no further entitlement to benefits beyond May 30, 2019. Review Office noted that the diagnostic imaging indicated the worker had a pre-existing degenerative condition in her left knee, and found that this condition was not caused or structurally altered by the workplace accident. Review Office agreed with the May 23, 2019 opinion of the WCB medical advisor that the worker was capable of returning to her pre-accident job duties, as her soft tissue injuries had resolved.

On January 10, 2020, the worker's representative appealed the Review Office decision to the Appeal Commission. An oral hearing was arranged and proceeded by way of teleconference on August 13, 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 November 9, 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 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 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

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 WCB's Board of Directors has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The stated purpose of the Policy is identified, in part, as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

With respect to wage loss eligibility, the Policy states, in part, 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.

Worker's Position

The worker was represented by a worker advisor, who provided a written submission and pictures of the accident location in advance of the hearing. The worker's representative made an oral submission to the panel, and the worker responded to questions from her representative and from the panel.

The worker's position was that she continued to suffer from the effects of her workplace injury after May 30, 2019 and is entitled to benefits beyond that date.

The worker's representative submitted that it was important to note that the worker had no left knee difficulties until her workplace accident of February 22, 2019, and that if not for that accident, she would have been able to continue performing her regular duties.

The representative submitted that medical information showed that based on their examination of the worker, neither her attending sports medicine physician nor her treating physiotherapist had cleared the worker to return to full unrestricted duties as of May 31, 2019. The representative pointed to the physiotherapist's May 31, 2019 report, where the physiotherapist confirmed that the worker continued to have left knee difficulties and imposed a restriction of 4-hour shifts, with no repetitive crouch, squat, and lift to 20 pounds mid-range.

In response to questions from her representative, the worker confirmed that the employer had not contacted her with an offer to return to any modified duties as of May 31, 2019. The representative noted that in a medical note dated June 14, 2019, the attending physician referred to a return to modified duties, with restrictions of avoiding prolonged standing for greater than one hour and the need to stop every hour and sit for 10 minutes to rest. The representative noted that file information documented that the employer advised the case manager at that time that these restrictions would not allow the worker to return to work.

The worker's representative noted the worker was cleared to return to work on August 19, 2019, but her symptoms continued. In response to questions from her representative, the worker indicated that she worked very reduced hours when she returned to work in August 2019 and could not do all of her duties. She said that she is not currently working; that she could not keep up with the work, and the employer terminated her employment.

The worker's representative submitted that the WCB orthopedic consultant provided an opinion on May 23, 2019 that because it had been three months, the worker could return to her normal work-related duties. The representative noted that the orthopedic consultant had not examined the worker, and the medical information from the worker's healthcare providers who had examined the worker countered the consultant's position that the worker was able to return to her normal unrestricted duties. The representative submitted that to discontinue benefits because three months has passed is an unfair assessment, and is contrary to the provisions in the Act that benefits are payable for injuries related to a workplace accident.

The worker's representative submitted that the evidence supports that the contusion and sprain injury to her left knee from the workplace accident aggravated the worker's underlying or pre-existing left knee conditions. The representative submitted that the WCB is therefore responsible under the Policy for the full injurious result of the compensable injury.

In conclusion, the worker's representative submitted that the worker had not recovered from her injury, and her loss of earning capacity did not end when her benefits were discontinued on May 30, 2019; nor did it end on August 19, 2019, when she had no choice but to attempt to return to work at reduced hours, but still had ongoing difficulties. It was submitted that the worker is therefore entitled to further benefits beyond May 30, 2019.

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 benefits after May 30, 2019. For the appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and/or required medical aid beyond May 30, 2019 as a result of her February 22, 2019 workplace incident. The panel is able to make that finding, for the reasons that follow.

The panel notes that the worker's representative confirmed at the hearing that they were only concerned with the worker's compensable left knee strain/sprain injury on this appeal, as opposed to other injuries that were mentioned earlier in the file.

Based on our review of all of the information which is before us, the panel is satisfied that the worker's compensable left knee sprain/strain injury had not resolved, and she continued to suffer from the effects of her work-related injury, as at May 30, 2019.

The panel is satisfied that the medical evidence shows the worker's treating healthcare providers had not cleared her to return to her full regular work duties as of May 30, 2019. The panel notes that the May 27, 2019 chart notes and May 31, 2019 report from her treating physiotherapist noted restrictions of no repetitive crouch/squat, breaks as needed, 4-hour shifts and lifts to 20 pound mid-range on an occasional basis, and that the worker would discuss her return to work/restrictions with her physician. The May 31, 2019 report and medical note from the attending physician indicated: "Sedentary duty. If not sedenatray (sic) duty then off work 2 weeks…"

The evidence further indicates that while restrictions had been previously provided, the employer had not found appropriate modified duties for the worker or been able to accommodate her up to that time, and the worker had not worked since the February 22, 2019 workplace accident.

In a June 14, 2019 report and medical notes, the treating physician indicated: "Modified duty. Needs to stop every hour and sit for 10 minutes to rest and could do other activity at that time…" Information on file indicates that on June 19, 2019, the employer advised that the worker had not been back to work since the injury date, and the new restrictions would not allow her to come back.

The evidence also indicates that the physiotherapy treatment had been delayed and worker did not start such treatment until April 29, 2019, or more than two months after the workplace accident. The worker said that her physician had not wanted her to start physiotherapy until they saw the results of the MRI.

The evidence further shows that the worker continued to be treated by her physiotherapist through to August 13, 2019, which was paid for by the WCB. When asked how many visits she attended, the worker stated that "I went for every single one until they wouldn't pay anymore." She said she went back to physiotherapy on her own after that, attending four visits in September and October 2019, which she paid for out of her pocket, because "…I needed to decrease the pain…to have better mobility and increased flexibility." She said she was not doing physiotherapy currently, noting that it is extremely expensive.

The panel notes that in reports on file and chart notes provided following the hearing, the treating physiotherapist reported ongoing overall improvement in July through to August 13, 2019. In her Discharge Report dated August 13, 2019, on file, the treating physiotherapist indicated that the worker was "cleared for r/d [regular duties] (next week)." The panel further notes that in chart notes obtained subsequent to the hearing, the physiotherapist indicated that the worker had been cleared to work by her treating sports medicine physician, and indicated "functional recovery; RTW [return to work] pending" under the heading "Assessment".

Based on the foregoing, and on a balance of probabilities, the panel finds that the worker suffered a loss of earning capacity and required medical aid beyond May 30, 2019 as a result of her February 22, 2019 workplace incident. The worker is therefore entitled to benefits after May 30, 2019.

In conclusion, the panel notes that in coming to this determination, we make no findings as to the scope or duration of benefits to which the worker may be entitled.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 23rd day of December, 2020