Decision #02/21 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss benefits after August 25, 2019 or to further physiotherapy treatment. A teleconference hearing was held on November 10, 2020 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to wage loss benefits after August 25, 2019; and
Whether or not the worker is entitled to further physiotherapy treatment.
Decision
That the worker is entitled to wage loss benefits after August 25, 2019; and
That the worker is entitled to further physiotherapy treatment.
Background
On February 5, 2019, the worker filed a Worker Incident Report with the WCB, reporting that she injured her right knee at work on January 19, 2019 when she was pushing a large piece of equipment and felt a sharp pain in her right knee. The worker noted she told a co-worker she had a sharp pain in her knee, but finished her shift that day.
On February 3, 2019, the worker sought medical treatment from a sports medicine physician, complaining of knee pain which developed approximately 2 weeks previously. No mechanism of injury was indicated on the physician's reports. The physician noted the worker had medial joint line tenderness, decreased flexion and slight swelling. An x-ray was taken of the worker's right knee and found to be normal. The physician diagnosed the worker with a degenerative meniscus.
At an initial physiotherapy assessment on February 4, 2019, the worker reported right knee pain, swelling and stiffness. The physiotherapist diagnosed her with a "knee sprain, non-specific" and recommended she remain off work for one week.
On February 22, 2019, the WCB's Compensation Services advised the worker that her claim was accepted for the January 19, 2019 workplace incident, but medical treatment and wage loss benefits were not authorized as they could not establish a connection between her current difficulties and the workplace incident. On March 1, 2019, the worker requested that Review Office reconsider Compensation Services' decision.
On April 16, 2019, Review Office found that the diagnosis of a right knee sprain was consistent with the mechanism of injury and recommendations that the worker not perform her regular duties were reasonable. Review Office therefore concluded that the worker was entitled to benefits. That same day, the worker returned to work on modified sedentary duties, with reduced hours.
On April 17, 2019, the worker underwent an MRI of her right knee. The MRI identified "Moderate degenerative change medial femorotibial compartment" and "Complex tearing medial meniscus." On May 29, 2019, a WCB medical advisor reviewed the worker's file, and on May 30, 2019, the worker was advised that the WCB would be accepting the diagnosis of a meniscal tear in her knee as being related to her January 19, 2019 workplace incident.
On May 31, 2019, the worker was seen by an orthopedic surgeon, who reported that on examination, the worker's right knee "…was mild to moderately effused with significant tenderness along the medial joint line," and recommended arthroscopic surgery. By letter dated June 18, 2019, the surgeon was advised that the WCB accepted financial responsibility for the right knee arthroscopy and partial medial meniscectomy or meniscus repair, but did not accept responsibility for degenerative changes to the medial femorotibial compartment.
On June 21, 2019, the worker underwent a right knee medial meniscus repair. On July 11, 2019, the treating orthopedic surgeon noted that the worker was to rehab the knee, and recommended restrictions of no squatting, crouching, climbing, excessive walking, prolonged standing or heavy lifting, which restrictions were provided to the employer on July 12, 2019.
On July 18, 2019, the worker attended an initial post-surgery physiotherapy assessment. The physiotherapist noted the worker's report of swelling in her right knee, and pain with walking, stairs or prolonged sitting. The physiotherapist noted tenderness over the insertion point of the surgery, and provided the worker with exercises she could perform at home.
On July 24, 2019, the WCB medical advisor reviewed the surgical report and the worker's file and opined that the debridement of the medial meniscus tear portion of the surgery was related to the compensable injury, while debridement of chondromalacia was for the degenerative condition and not the compensable injury. The medical advisor further opined that the recovery time for the portion of the surgery which was related to the workplace injury was 6 weeks, but that degeneration in the compartment could prolong recovery.
On July 26, 2019, the worker returned to work, working partial hours on modified duties. At a follow-up appointment on August 8, 2019, the treating orthopedic surgeon indicated that the worker could return to her full duties on August 26, 2019.
On August 9, 2019, the worker contacted the WCB and expressed concerns with respect to returning to her regular duties on August 26, 2019. The worker noted that she was currently working 4 hours per day on light sedentary duties. She said she had no problem with the sedentary job, but felt she was not ready to go back to her regular job on August 26, 2019, as her leg was swollen and painful by the end of her 4-hour shift.
On August 22, 2019, the worker's family physician provided a note indicating that the worker continued to have right knee swelling, with decreased range of motion, ongoing right knee pain and increased swelling after weight-bearing, and that she should remain off work for a further 3 weeks, then return for reassessment.
A meeting was arranged with the worker, the employer and the WCB for August 22, 2019. At that meeting, the employer advised they could continue to accommodate the worker with sedentary duties and the WCB advised the worker that wage loss benefits would only be paid to August 22, 2019, as her surgeon had cleared her to return to her regular duties on August 26, 2019 and there was no reason she could not do sedentary duties.
On August 26, 2019, the WCB medical advisor reviewed the worker's file and opined that the report of increased swelling and pain and the family physician's recommendation that she remain off work would more likely be related to the underlying degenerative condition in the worker's knee. By letter dated August 27, 2019, Compensation Services confirmed to the worker the details of her August 22 return to work meeting, and that they had determined her ongoing symptoms were more related to her underlying degenerative condition and not her compensable injury.
On August 30, 2019, the treating physiotherapist filed an application for additional treatment. The application was reviewed by a WCB physiotherapy consultant, and on September 6, 2019, Compensation Services advised that the request for additional treatment was not approved.
On September 20, 2019, the worker requested that Review Office reconsider Compensation Services' August 27, 2019 and September 6, 2019 decisions. The worker noted that she did not have any difficulties with her knee until the workplace injury, and her treating healthcare providers supported she required further time on modified duties and further physiotherapy treatment to recover from her injury. On November 22, 2019, the employer's representative advised that they agreed with Compensation Services' decision and had no new information to add.
On November 27, 2019, Review Office determined the worker was entitled to wage loss benefits to August 25, 2019, inclusive, but was not entitled to further physiotherapy treatment. Review Office found that the compensable diagnosis was a right knee meniscus injury. Review Office accepted the opinion of the treating orthopedic surgeon that the worker was cleared to return to her regular job duties by August 26, 2019, and the opinion of the WCB medical advisor that the worker's symptoms of increased pain and swelling would more likely be related to her underlying degenerative condition and not the workplace incident or surgery. Review Office concluded that there was entitlement to partial wage loss benefits based on the work accommodation to August 25, 2019, inclusive, but no further entitlement to benefits beyond that date, and no entitlement to coverage for further physiotherapy treatment.
On May 7, 2020, the worker appealed the Review Office decision to the Appeal Commission, and a teleconference hearing was arranged.
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 has:
1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and
3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
Worker's Position
The worker was self-represented. The worker was assisted by her spouse in her presentation at the hearing, and was provided with the services of an interpreter. The worker responded to questions from her spouse and from the panel.
The worker's position was that she had not recovered from her compensable injury and surgery as at August 26, 2019, and is entitled to wage loss benefits and coverage of physiotherapy treatment after that date.
The worker submitted, through her spouse, that the WCB and the treating orthopedic surgeon erred in using a "cookie-cutter approach," and determining that as the injury was a medial meniscus tear with a standard recovery period of two months post-surgery, the worker would be fully ready to return to work after two months. It was submitted that the reality was that the worker was not fit to return to her full-time or regular duties on August 26, 2019.
It was submitted that the expectation that the worker would be ready to return to her full regular duties within two months of her surgery was unrealistic. It failed to consider the additional time the worker required for her recovery, given she had been unable to do any physical activity for 7 months. It failed to consider the worker's age and that the longer recovery time that would be required for someone who was "a little bit older." It failed to consider the highly physical nature of the worker's regular work duties. It also failed to consider the worker's need for a gradual return to full duties.
It was noted that the employer, the treating physiotherapist and the worker's family physician all recognized that the worker was not yet ready to return to full-time work or her regular job duties. Fortunately, the worker had coverage from another benefits program, and they worked with the employer going forward. As a result, the worker continued to receive physiotherapy treatments and care, and was placed on a gradual return to work with significantly reduced duties and hours. The worker continued on the gradual return to work program from August 26, 2019 to December 20, 2019, with increasingly more demanding work and more hours being introduced over time, and at the end of the program she was able to return to her regular full-time duties.
In conclusion, it was submitted that the worker had not fully recovered from her workplace injury by August 25, 2019, and is entitled to wage loss benefits and coverage of physiotherapy treatment from August 26, 2019 through to December 20, 2019, inclusive, being the last day of her reduced duties and gradual return to work.
Employer's Position
The employer did not participate in the appeal.
Analysis
Issue 1: Whether or not the worker is entitled to wage loss benefits after August 25, 2019.
For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond August 25, 2019 as a result of her January 19, 2019 workplace incident. The panel is able to make that finding.
Based on our review of all of the evidence which is before us, on file and as presented at the hearing, the panel is satisfied that the worker had not recovered from the effects of her January 19, 2019 workplace incident as at August 25, 2019 and suffered a loss of earning capacity beyond that date as a result of her workplace incident.
In arriving at that conclusion, the panel places significant weight on the worker's evidence at the hearing. The worker indicated that she continued to attend for physiotherapy treatments and participated in a gradual return to work program through another benefits program after her WCB benefits ended on August 25, 2019. In response to questioning from the panel, the worker indicated that while her family physician had taken her off work for 3 weeks at the end of August 2019, she continued with her gradual return to work immediately after August 26, 2019. The worker indicated that her hours and duties gradually increased over time from August 26, 2019, and she gradually progressed from doing sedentary duties to working on the floor.
The panel is further satisfied that the evidence shows the worker has now recovered from the effects of her compensable injury and surgery. The worker thus confirmed at the hearing that her gradual return to work program ended on December 20, 2019, and she was able to return to her regular duties on December 23, 2019, working full-time hours in the same department as where she had been injured. The worker stated that everything is fine now, she feels good, has no pain in her knee and is really active. She indicated that she has continued working full-time hours, and has even worked extra hours at times, given the pandemic.
The panel notes that while the treating orthopedic surgeon had indicated on August 8, 2019 that the worker would be able to return to her full duties on August 26, 2019, the surgeon also recommended significant restrictions as of August 8, 2019 and the worker's evidence was that she did not see the treating orthopedic surgeon again after August 8, 2019.
While the WCB medical advisor had also opined, on August 26, 2019, that the graduated return to work would have been appropriate, with the worker starting with sedentary duties on July 26, 2019 and progressing to full duties over the following month, such that the worker would have been cleared for full duties within 2 months of the surgery, information on file shows that the worker had not so progressed and was continuing to work significantly reduced hours and sedentary duties up until August 26, 2019.
While the medical advisor further noted that the worker had presented to her doctor on August 22, 2019 with increased swelling and pain, and opined that this would not be as a result of the surgery and was more likely related to the pre-existing or underlying degenerative condition of the worker's knee, the panel notes that findings by the worker's family physician and physiotherapist on August 22, 2019 and August 30, 2019, respectively, also indicate ongoing symptoms, including effusion with decreased range of motion and joint line tenderness.
Further, and in any event, the panel places weight on the evidence that the worker's right knee condition improved subsequent to August 26, 2019 and eventually resolved, which the panel understands is not consistent with the natural history of a degenerative osteoarthritic condition.
In the circumstances, the panel is unable to accept that the worker's ongoing difficulties were solely or significantly due to the effects of her pre-existing degenerative condition, or that the worker had recovered from the workplace accident as at August 25, 2019 to the point that it was no longer contributing, to a material degree, to her loss of earning capacity as at that date. In accordance with the Policy, the WCB would therefore be responsible for the worker's loss of earning capacity beyond that date.
Based on the foregoing, and with the benefit of hindsight, the panel finds, on a balance of probabilities, that the worker had not recovered from her compensable injury as at August 25, 2019 and that she suffered a loss of earning capacity beyond that date as a result of her January 19, 2019 workplace incident. As a result, the panel finds that the worker is entitled to wage loss benefits after August 25, 2019.
In making this determination, the panel notes that although it was submitted at the hearing that the worker's loss of earnings as a result of her compensable injury continued through to December 20, 2019, we make no findings as to the duration or amount of wage loss benefits to which the worker may be entitled.
The worker's appeal on this issue is allowed.
Issue 2: Whether or not the worker is entitled to further physiotherapy treatment.
For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker required further physiotherapy treatment to cure and provide relief from her compensable injury resulting from the January 19, 2019 workplace incident. The panel is able to make that finding.
Given our findings with respect to Issue #1 above, that the worker had not recovered from her compensable injury as at August 25, 2019, and the evidence as outlined above that the worker continued to receive physiotherapy treatments beyond that date in conjunction with her return to work program, the panel is satisfied, on a balance of probabilities, that the worker required further physiotherapy treatment to cure and provide relief from her compensable injury resulting from the January 19, 2019 workplace incident.
The panel therefore finds that the worker is entitled to further physiotherapy treatment. As with respect to Issue #1, the panel makes no findings as to the duration or extent of the physiotherapy treatments to which the worker may be entitled.
The worker's appeal on this issue is allowed.
Panel Members
M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 8th day of January, 2021