Decision #05/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits after September 19, 2018. A teleconference hearing was held on April 16, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after September 19, 2018.
That the worker is entitled to wage loss benefits after September 19, 2018.
This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 28/18 dated March 7, 2018. The background will therefore not be repeated in its entirety.
On January 16, 2017, the WCB advised the worker his claim for a left knee injury which occurred on August 3, 2016 was accepted and he was entitled to benefits up to and including August 5, 2016. The WCB further advised the worker that as he continued to work his regular duties without symptoms or complaints after the August 3, 2016 incident, it was felt he had recovered from what had been diagnosed as a left knee strain, and would not be entitled to benefits beyond August 5, 2016. On May 9, 2017, Review Office upheld the WCB's decision.
The worker appealed the Review Office decision to the Appeal Commission, and on March 7, 2018, in Decision No. 28/18, the Appeal Commission determined that the worker had sustained a radial tear of the lateral meniscus on August 3, 2016 and was entitled to wage loss and medical aid benefits for this injury after August 5, 2016.
On March 19, 2018, the WCB contacted the worker for a status update and to gather further information on his claim. The worker advised he had not worked for the employer since August 22, 2016, but had worked for two different employers since that time. The worker confirmed that he had not sought further medical treatment but would be following up with his orthopedic surgeon with respect to the tear.
On May 22, 2018, the worker's orthopedic surgeon noted he had seen the worker in January 2017 "…with a left knee in which he had a lateral meniscus tear which was symptomatic" and that "He has known medial compartment arthritis which is not the issue at this time." The surgeon noted that he would be booking the worker for an "arthroscopy intra articular surgery left knee." On June 12, 2018, the WCB approved funding for the proposed arthroscopy and meniscectomy.
On June 19, 2018, the worker's orthopedic surgeon advised that the worker's surgery which had been scheduled for June 27, 2018 would need to be rescheduled to be done in a hospital, due to a non-compensable health issue of the worker. The surgeon further noted that he was in the process of retiring and would transfer treatment of the worker to a colleague.
The worker was seen by the new orthopedic surgeon on June 29, 2018. The new orthopedic surgeon reviewed x-rays of the worker's knees taken that day and noted they demonstrated "severe medial compartment OA [osteoarthritis] with bone on bone articulation." The orthopedic surgeon went on to opine that "…I do not think that a knee arthroscopy would be sufficient particularly considering his medial sided symptoms. I think he would be a good candidate for total knee replacement."
On July 25, 2018, the orthopedic surgeon's request for funding approval of a total knee replacement ("TKR") for the worker was reviewed by a WCB orthopedic consultant, who noted the WCB had approved funding for surgery to the worker's lateral meniscus, and the orthopedic surgeon was recommending a TKR due to progressive osteoarthritis of the worker's left knee. The consultant noted that a TKR was not a treatment for a torn lateral meniscus. The consultant opined that there was no medical evidence that the August 3, 2016 workplace injury altered the osteoarthritis in the worker's knee in such a way that TKR became necessary, and recommended the WCB not fund the proposed TKR surgery in relation to the claim. On August 15, 2018, the WCB orthopedic consultant further opined that an anticipated recovery time from the proposed arthroscopy and meniscectomy which had been approved by the WCB would be three months.
On August 15, 2018, the WCB advised the worker that his entitlement to benefits would end on September 19, 2018. The WCB advised that as the WCB orthopedic consultant noted the expected recovery time from the proposed arthroscopic surgery, as approved by the WCB, would be three months, the worker was entitled to benefits for 12 weeks only after the proposed arthroscopy of June 27, 2018 was to have occurred, and any further symptoms or medical treatment to the worker's left knee required after that date would not be considered to be related to the compensable left knee injury.
On June 27, 2019, the worker requested that Review Office reconsider the WCB's decision, noting that his healthcare provider advised he needed a TKR, and he should be entitled to compensation for the knee replacement.
On August 21, 2019, Review Office determined the worker was not entitled to benefits beyond September 19, 2018. Review Office placed weight on the opinion of the WCB orthopedic consultant and found that the worker's current left knee difficulties were pre-existing and not caused by, or structurally altered as a result of, the August 3, 2016 workplace incident. Review Office agreed that wage loss and medical aid benefits associated with a TKR were not the responsibility of the WCB. Review Office concurred with the WCB's decision to extend wage loss benefits based on the recovery norm for the proposed compensable surgery, and found that any loss of earning capacity beyond September 19, 2018 would not be responsibility of the WCB.
On October 17, 2019, the worker appealed the Review Office decision to the Appeal Commission, and a teleconference hearing was arranged.
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 worker for comment. On November 24, 2020, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
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 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 126.96.36.199, 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.
The worker was self-represented. The worker made a presentation at the hearing, and responded to questions from the panel.
The worker stated that it was not until he won his appeal at the Appeal Commission on March 7, 2018 that he became entitled to wage loss and medical aid benefits beyond August 5, 2016. The worker submitted that the long wait for medical treatment while his appeals proceeded resulted in his knee becoming much worse, to the point where the proposed scope was no longer considered sufficient to address his injury and a TKR was required.
The worker noted that he has been paid wage loss benefits to September 19, 2018, as if the scope had been done on June 27, 2018, but did not receive medical treatment for his left knee injury.
The worker stated that the TKR was performed in March 2019, and since then he has been able to get around much better. He said that before the TKR, he was basically crippled; he could not go anywhere and could not do anything in terms of work. The worker said he was glad he had the TKR done, and wished he had not had to wait so long for it to be done.
The worker submitted that he was seeking further wage loss benefits through to the date of the TKR surgery and for an additional three months' recovery time after that.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to wage loss benefits after September 19, 2018. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond September 19, 2018 as a result of his August 3, 2016 workplace incident. For the reasons that follow, the panel is able to make that finding.
The worker has an accepted claim for a left lateral meniscus tear. On May 22, 2018, the treating orthopedic surgeon advised the WCB that they would be booking the worker for arthroscopic surgery in relation to his symptomatic lateral meniscus tear. On June 12, 2018 the WCB advised that they accepted financial responsibility for the proposed procedure in respect of the arthroscopy knee joint and meniscectomy or meniscal repair, but would not be responsible for the degenerative changes which had been identified on an August 14, 2016 MRI.
Subsequently, on June 19, 2018, the treating orthopedic surgeon advised that as it had been determined that the worker had sleep apnea, the surgery which had been scheduled for June 27, 2018 could not proceed as planned and had to be rescheduled to be performed in a hospital facility.
As the worker's surgeon was retiring, the worker was also being referred to another surgeon. The new orthopedic surgeon saw the worker in consultation shortly after that, and based on more recent imaging, determined that the proposed surgery was no longer appropriate.
A request for funding for a TKR was subsequently denied, based on the WCB orthopedic consultant having reviewed that request and opined that a TKR was not a treatment for a torn lateral meniscus. The panel accepts the WCB orthopedic consultant's opinion that the proposed TKR was not a treatment for a torn lateral meniscus and was not required in relation to the worker's compensable injury.
The panel notes that the worker's compensable injury, however, had still not been addressed at this point. The panel is satisfied that the worker continued to suffer the effects of that injury, and his injury continued to contribute to his ongoing difficulties and loss of earning capacity.
On August 15, 2018, the WCB advised the worker that he was entitled to wage loss benefits for a 12-week period, based on the proposed arthroscopy having proceeded on June 27, 2018 and an expected recovery period of 12 weeks following that procedure. As indicated above, however, the procedure could not have proceeded on June 27, 2018 as planned, due to the worker's pre-existing or co-existing sleep apnea which led to it having to be performed in a different venue.
In response to an inquiry from the panel following the hearing as to what would have been the expected wait time for scheduling the proposed arthroscopy and miniscectomy in the alternate venue at that time, the treating orthopedic surgeon stated that he believed his surgical wait time for arthroscopy around that time was approximately three months from the time of initial consultation until surgery.
In the circumstances, the panel is satisfied that the worker is entitled to wage loss benefits for the 12 week wait period until the approved surgery could be performed, in addition to the 12 week recovery period from that surgery which had previously been identified by the WCB and the WCB orthopedic consultant. The panel is further satisfied that the worker is not entitled to wage loss benefits beyond that 24 week period. While the worker eventually underwent a TKR, the panel accepts that the TKR, and the further wait time which was required before that surgery could be scheduled and performed, was not related to his compensable injury.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond September 19, 2018 as a result of his August 3, 2016 workplace incident, and is therefore entitled to further benefits after that date as indicated above.
The worker's appeal is allowed.
M. L. Harrison, Presiding Officer
P. Challoner, 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