The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. They are not entitled to wage loss benefits for the period October 6, 2018 to February 26, 2021; and 

2. They are not entitled to wage loss and medical aid benefits after October 22, 2021.

A hearing was held on December 14, 2022 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to wage loss benefits for the period October 6, 2018 to February 26, 2021; and 

2. Whether or not the worker is entitled to wage loss and medical aid benefits after October 22, 2021.

Decision

1. The worker is not entitled to wage loss benefits for the period October 6, 2018 to February 26, 2021; and 

2. The worker is not entitled to wage loss and medical aid benefits after October 22, 2021.

Background

The worker reported an injury to the WCB on January 16, 2006 resulting from an incident at work on January 9, 2006 when the worker took a misstep off a scaffold, falling approximately four to five feet and landing on their right knee. The worker indicated their knee twisted, there was lots of swelling, and a bone was broken. The worker was taken to a local emergency department, where x-rays were taken, and the worker was diagnosed with a tibial spine plateau fracture in their right knee. An orthopedic specialist assessed the worker on January 16, 2006 and noted the worker was placed in a brace and should not bear weight on that knee. At a follow-up appointment on February 13, 2006, the orthopedic specialist noted that x-rays taken that day indicated “…good healing and good position with no displacement” and referred the worker for physiotherapy. The specialist recommended the worker wean off the brace and resume full weightbearing.

On February 14, 2006, the worker attended an initial physiotherapy assessment reporting anteromedial pain, worse in morning and with increased weightbearing. The physiotherapist diagnosed a right tibial spine fracture and recommended further treatment. By March 27, 2006, the treating orthopedic specialist noted the worker, at 12 weeks post-injury, had full range of motion in their knee, which was noted to be stable and cleared the worker to return to work the following day.

There was no further activity in respect of the worker's claim until the worker contacted the WCB on August 8, 2018 to advise of a further claim regarding their right knee as the result of an incident that occurred on January 26, 2018. The worker advised they had ongoing difficulties with their right knee since the workplace accident of January 9, 2006 and were experiencing anterior cruciate ligament (“ACL”) instability. During the WCB’s investigation, the worker advised that they had discussed their longstanding ACL issues with their treating orthopedic surgeon and physiotherapist, and the surgeon recommended surgery to correct the issue. The WCB had determined the ACL issues were a pre-existing condition in relation to the 2018 WCB claim and provided limited approval of the surgical request due to the pre-existing condition.

In relation to the 2018 WCB claim, the worker attended a call-in examination with a WCB medical advisor on September 10, 2018. On examination, the medical advisor provided an opinion with respect to the worker's complaints of right knee looseness, that the clinical findings of "…a mild anterior translocation of the right tibia at the right knee on straight leg raise and a mildly positive anterior drawer sign, are congruent with ACL insufficiency" and noted a chronic ACL injury was identified during a February 26, 2018 right knee MRI and during the May 30, 2018 right knee arthroscopy. Further, the WCB medical advisor was of the view that the January 9, 2006 mechanism of injury would have been sufficient to cause a right knee ACL injury. The medical advisor also provided that "The findings in the January 9, 2006 right knee x-ray report, that indicated a fluid level consistent with a hemarthrosis (blood within the knee joint), and a comminuted fracture through the base of the lateral tibia spine, are congruent with an acute ACL injury" and opined the worker's right knee ACL insufficiency is medically accounted for in relation to the January 9, 2006 workplace accident rather than the 2018 accident. The medical advisor further noted the loose osteochondral fragment and articular cartilage defect found during the May 30, 2018 arthroscope was as the result of an ACL injury and as such, was also related to the January 9, 2006 workplace accident and not the 2018 accident.

The WCB determined on October 15, 2018 that based on the call-in examination findings, the worker’s right ACL insufficiency was accounted for in relation to the 2006 claim, but the worker’s current right knee medial area difficulties were not related. The WCB further indicated the medical evidence on file did not support the worker was totally disabled from work in relation to this claim.

On October 17, 2018, the WCB received a copy of an October 15, 2018 letter in support of the worker's claim from the worker's treating orthopedic surgeon. The surgeon noted the worker had two significant WCB claims, one which resulted in ACL insufficiency, and the other which resulted in the worker requiring surgery for medial and lateral meniscal tearing. The surgeon further noted the worker's reporting of persistent medial joint pain, with uncertain origin, but reported since the time of the 2006 workplace accident. The treating surgeon opined "Not infrequently following partial meniscectomy, in individuals with ACL insufficiency, there is an increase in instability-related issues following the loss of a fully competent medial meniscus."

On October 30, 2018, a WCB medical advisor reviewed the medical information provided, along with the worker's file and had a telephone discussion with the worker's treating orthopedic surgeon. After the review, the advisor provided there was no evidence that the worker's right knee ACL deficiency had been altered by the 2018 workplace injury or the May 30, 2018 arthroscopic surgery. The medical advisor noted the treating surgeon clarified "…that an increase in ACL instability related issues following partial meniscectomy, is theoretical." The advisor indicated the treating surgeon had suggested work restrictions for the worker with the advisor providing restrictions of avoidance of repetitive climbing, squatting, or carrying heavy loads as preventative measures only, as there was no medical evidence to support a change in the worker's ACL insufficiency and the increase after meniscectomy was only theoretical.

On October 30, 2018, the worker requested reconsideration of the WCB's decision to Review Office. The worker submitted that their treating healthcare providers agreed that the ACL insufficiencies accepted by the WCB related to their persistent right knee pain as their 2018 workplace accident aggravated the ACL injury from 2006.

On December 19, 2018, Review Office found that other than the surgical cost for removal of a loose fragment, which was determined to be related to this claim and not to the 2018 claim, the worker was not entitled to further benefits. Review Office accepted and relied upon the opinions of the WCB medical advisor and found the worker's current difficulties were not related to the January 9, 2006 workplace accident.

The WCB received a further letter dated January 15, 2019 from the worker's treating orthopedic surgeon in support of the worker's appeal on January 29, 2019. The surgeon indicated the arthroscopic surgery "…demonstrated tearing of the medial meniscus with associated tearing of the lateral meniscus and an ACL that was considered to be incompetent; albeit in continuity…".

On March 20, 2019, Review Office provided the worker with a further decision indicating the medical information received from their treating surgeon was similar to information already on their file and as such, there would be no change to the earlier decision they were not entitled to further benefits.

A second treating orthopedic surgeon provided the WCB with a report on December 17, 2020. The surgeon opined the worker was "…most likely symptomatic from the ACL deficiency of his right knee" and recommended a revision knee scope and ACL reconstruction and debridement to treat the worker's ongoing symptoms. The WCB case manager subsequently requested and received copies of the December 6, 2020 CT scan and the August 13, 2020 x-ray report and then requested review of the worker's file for surgery approval. On February 1, 2021, a WCB medical advisor reviewed the information and opined that "A right knee ACL reconstruction is an appropriate treatment option for the accepted compensable diagnosis of right knee ACL insufficiency." The WCB authorized the surgery, which took place on February 27, 2021, and provided the worker with full wage loss benefits.

The worker began post-surgery physiotherapy on March 2, 2021. A WCB medical advisor reviewed the worker’s file on March 17, 2021 and concluded that the current diagnosis was a right knee ACL insufficiency secondary to an ACL tear, as identified on the February 27, 2021 surgical report. Restrictions, to be in place for six months, included avoiding straight right leg raising against resistance, squatting, crawling, kneeling, twisting motions of the right knee, especially when lifting/carry loads, walking on uneven surfaces, the requirement to frequently climb stairs, and running and jumping. The medical advisor noted that a typical treatment/recovery plan for an ACL reconstructive surgery would be two to four weeks convalescence, followed by physiotherapy for maintenance or recovery of range of motion and knee strengthening, with recovery expected over a six month period.

At follow-up on May 19, 2021, the orthopedic surgeon noted the worker had good range of motion and the knee was stable with a bit of tenderness medially. The surgeon recommended the use of anti-inflammatory medication and continued physiotherapy. At physiotherapy on May 27, 2021, the treating physiotherapist noted the worker's report that their knee felt much more stable, but the worker still reported pain around their knee as they experienced prior to the surgery. On September 10, 2021, the worker requested WCB reconsider the decision they were not entitled to wage loss benefits after October 7, 2018 as they noted the ACL insufficiency injury left them unable to perform their job duties and as such, they should be entitled to wage loss benefits.

The worker attended a further follow-up with the orthopedic surgeon on October 13, 2021. The surgeon noted the worker's reporting of "…a bit of catching and pain to the knee" but of an unknown source. The surgeon also noted the worker reported their knee felt stable and was happy they had undergone the ACL reconstruction surgery. The surgeon indicated the worker was walking quite well, with good alignment, no effusion and full extension out of the knee and flexion equal to their left knee. Further, the surgeon noted "…the knee feels stable to Lachman, anterior drawer, pivot shift testing." No further investigations or treatment were recommended, and the surgeon stated the worker could continue with all their activities as tolerated.

On October 22, 2021, the worker advised the WCB they were returning to work on light duties on October 25, 2021. On November 2, 2021, a WCB medical advisor reviewed the worker's file and provided their conclusion that, based on the October 13, 2021 report of the worker's treating orthopedic surgeon, the worker had recovered from the right knee ACL insufficiency.

On December 9, 2021, the WCB provided the worker with a decision letter indicating they were not entitled to wage loss benefits from October 6, 2018 to February 26, 2021. The WCB noted a March 27, 2006 report from the initial treating orthopedic surgeon found they had full range of motion, their knee was stable, and they were cleared to return to their full regular duties. No further information was placed to the file until they sustained a further right knee injury in 2018, with the WCB paying wage loss benefits on that claim from January 30, 2018 to October 5, 2018. Work restrictions were placed with respect to the 2018 claim and the employer for that claim offered modified duties within those restrictions, which the worker refused. The WCB noted that as the worker failed to mitigate their loss of earning capacity by participating in the suitable modified duties available, they were not entitled to wage loss benefits from October 6, 2018 to February 26, 2021. With respect to entitlement to medical aid and wage loss benefits after October 22, 2021, the WCB noted based on the opinion of the treating orthopedic surgeon and the WCB medical advisor, the worker had reached a functional recovery from the workplace accident and could return to their pre-accident job duties. A detailed letter in support of the worker's ongoing need for medical aid and wage loss benefits from the worker's treating orthopedic surgeon was received by the WCB on December 20, 2021 and on December 22, 2021, the WCB advised the worker the medical information provided in the letter did not warrant a change to the earlier decision.

The worker requested reconsideration of the WCB's decision to Review Office on January 24, 2022. The worker provided a chronology of the events of the workplace accidents from 2006 and 2018 and noted they continued to experience ongoing difficulties with their right knee, including chronic pain, and should be entitled to further benefits. The worker further noted the modified duties from the employer were not offered until January 2019, three months after the WCB ended their entitlement to benefits in October 2018.

Review Office determined, on March 10, 2022, that the worker was not entitled to wage loss benefits from October 6, 2018 to February 26, 2021 and they were not entitled to benefits after October 22, 2021. On the issue of entitlement to wage loss benefits from October 6, 2018 to February 26, 2021, Review Office noted that on the worker's 2018 claim, their employer could have accommodated the worker within the restrictions noted by the orthopedic surgeon; however, the worker had already decided to enroll in a re-education program, based on their orthopedic surgeon's advice to find other employment. In addition, Review Office noted the worker found other employment and made a choice to change occupations, ending their entitlement to benefits or the possibility for a loss of earning capacity. The worker was placed back on full wage loss benefits on February 27, 2021, being the date of the ACL reconstruction surgery. With respect to entitlement to medical aid and wage loss benefits after October 22, 2021, Review Office found the medical evidence supported the worker had made a good recovery from the ACL reconstruction surgery and could return to their pre-accident job duties without restrictions. As such, Review Office found there was no entitlement to further medical aid or wage loss benefits after October 22, 2021.

The worker filed an appeal with the Appeal Commission on August 23, 2022 and a hearing was arranged.

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 the Act and the policies established by the WCB's Board of Directors. The provisions of the Act and WCB policies in effect as of the date of the worker’s accident are applicable.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), a worker 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.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Section 22(1) creates an obligation upon workers in relation to injuries sustained as a result of an accident, to:

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury; 

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and 

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

Section 27 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

Worker’s Position

The worker appeared in the hearing on their own behalf and made an oral submission to the panel. The worker also provided testimony in response to questions posed to them by members of the appeal panel.

The worker’s position is that as a result of the workplace accident of January 9, 2006, they sustained injuries to their right knee that did not fully resolve and were not fully investigated or treated before the worker returned to their job duties in late March, 2006. The worker’s position is that as a result, their right knee sustained irregular wear and tear and was more vulnerable to further injury. It was only after the worker recovered from another compensable right knee injury sustained in the workplace accident of January 26, 2018, while in the employ of another employer, that the worker’s “longstanding ACL insufficiency” was identified as being related to the 2006 injury. The worker’s position is that as the injury never fully healed, they should be entitled to wage loss benefits for the period from October 6, 2018 (when the WCB determined the worker was recovered from the 2018 injury) through to February 26, 2021. With respect to entitlement to wage loss and medical aid benefits after October 22, 2021, the worker’s position is that on returning to work following their recovery from surgery, they continued to sustain a loss of earning capacity and require further medical aid in respect of their right knee injury.

The worker outlined the medical reporting on file and noted that although they returned to their pre-accident employment in March 2006, their right knee didn’t feel right after that. While the treating orthopedic specialist at that time noted a possible need for further treatment and investigation of a possible meniscal tear, these issues were not investigated until after the worker sustained another right knee injury in January 2018. The worker noted that in the intervening years, they experienced occasional instability in their right knee, but did not seek any treatment or medical care. The worker pointed out that in 2018, the treating orthopedic specialist concluded that the worker’s “longstanding ACL insufficiency” arose from the 2006 workplace injury and that since that time, the worker’s right knee was “intermittently unstable”.

The worker also noted that in August 2018, the treating orthopedic specialist recommended that the worker not return to their previous, physically demanding work but rather seek out less strenuous work. As a result, the worker stated they were “forced” to leave their career and find a new path. The worker determined to pursue another career through educational upgrading and did so, beginning in January 2019 and graduating from that program in October 2020. The worker noted that they had a term position in their new occupation beginning in late 2020, which paid significantly less than their pre-injury employment. The worker indicated they worked in that position until their surgery in February 2021. Following that surgery, the worker returned to working in their previous physically demanding profession, but noted that they struggle to work full 8-hour shifts as they cannot avoid climbing, crouching and kneeling activities in that work.

In their submission the worker relied upon the November 18, 2021 report of the treating orthopedic surgeon who conducted the ACL reconstruction surgery in February 2021. The worker noted that the surgeon recommended, in September 2021, that the WCB assess the worker’s functional abilities but that this was not pursued.

With respect to the offer of modified duties made to the worker by the 2018 accident employer, the worker noted there was no evidence in the WCB claim file of any such offer. Further, the worker noted that the 2018 accident employer did not confirm to the WCB that modified duties were available until January 2019 and the worker had already made other plans by then. The worker further stated that they were not willing to take on a modified duties role at a lower rate of pay, knowing that they would be among the first employees laid off if there was not enough work.

The worker further noted that since the surgical procedure in 2021, they have experienced hamstring tearing or pulling on two occasions at or near the area of the graft from that procedure. The worker described these injuries as “tweaks” noting they did not seek any medical care or treatment as a result.

Employer’s Position

The employer did not participate in the hearing of the appeal.

Analysis

There are two questions for the panel to determine in respect of this appeal. First, the panel must determine whether the worker is entitled to wage loss benefits from October 6, 2018 to February 26, 2021, and second, the panel must determine whether the worker is entitled to wage loss and medical aid benefits after October 22, 2021. For the worker’s appeal on the first question to succeed, the panel would have to find that the worker sustained a loss of earning capacity from October 6, 2018 to February 26, 2021 as a result of the compensable workplace injury of January 9, 2006, and for the worker’s appeal on the second question to succeed, the panel would have to find that the worker sustained a loss of earning capacity or required medical aid after October 22, 2021 as a result of that workplace injury. As outlined in the reasons that follow, the panel was not able to make such findings and therefore the worker’s appeal is denied in respect of both questions.

Entitlement to wage loss benefits from October 6, 2018 – February 26, 2021 

The panel first reviewed the evidence in relation to the worker’s return to work following the injury sustained on January 9, 2006. We note that the worker returned to work on March 28, 2006 without any restrictions or physical limitations placed on the worker’s job-related activities and that the worker returned to their pre-accident employment, which involved physical labour, as the worker described in relation to their return to that kind of employment following the surgery in 2021.

The panel further noted there is no evidence indicating the worker required any ongoing or further medical treatment arising from the right knee injury sustained on January 9, 2006 during the period from March 2006 until 2018 when the worker sustained another injury to their right knee while doing the same kind of work with a different employer.

The panel also considered the medical reporting in relation to the 2018 injury and the May 30, 2018 medial meniscal repair surgery resulting from that injury. We note that the evidence from the treating orthopedic surgeon indicates that by August, the worker was “doing very well post-operatively” and was likely capable of light duties, but not their full pre-accident duties at that time. The surgeon proposed that in the long term, given the worker’s ACL deficiency, the worker may “wish to think about some less strenuous pursuits.” When the worker was examined in a WCB call-in examination on September 10, 2018, the worker reported “a continuous aching sensation at the medial aspect” of their right knee that worsens to pain with increased activity, particularly twisting with the right knee under load, that certain knee positions are associated with lateral right knee pain, and they have “an ongoing right knee sensation of looseness” since the 2006 injury. Based on the examination findings, the WCB medical advisor concluded that the worker’s continuing symptoms were not related to the 2018 injury or surgery, but that the reported right knee looseness and the clinical findings were “congruent with ACL insufficiency”, noting that the 2006 mechanism of injury “would likely have involved forces of a magnitude to be related to a right knee ACL injury”; however, the medical advisor did not identify any pathoanatomic explanation for the worker’s right knee medial pain.

The panel also noted that in the October 15, 2018 letter from the treating orthopedic surgeon to the WCB, the surgeon concurs that “The reasons for the persisting medial joint pain remains somewhat uncertain” although noting it had been a consistent feature from the time of the 2006 injury. The surgeon again noted that the worker should not return to their previous strenuous work-related duties and suggested that the worker should rather seek out a work environment that “does not involve repetitive climbing, squatting or carrying heavy loads.” The WCB medical advisor, in an opinion dated October 31, 2018 confirmed that the restrictions proposed by the treating orthopedic surgeon “are reasonable on a preventative basis” and that there was no evidence of a “current clinical change to the ACL deficiency”.

The panel also considered the contents of the November 18, 2021 narrative report from the treating orthopedic surgeon in which the surgeon advocates for the provision of benefits to the worker after the 2018 workplace injury, noting “It would have been previously entirely reasonable to contemplate looking at an ACL reconstruction…after [the worker’s knee] was identified as lax or partly torn, as [the worker] had a high grade tear identified in 2018.” The surgeon further noted that the previous orthopedic surgeon placed restrictions on the worker that clearly prevented the worker from carrying out their usual job duties.

In relation to the worker’s return to work, the panel also noted discussions between the worker and the WCB in August 2018, related to the 2018 claim, in which the worker indicated they would be unable to return to their pre-accident work and the WCB case manager noted that the worker should follow up with the employer as to the possibility of accommodating the worker’s restrictions. By this time, the panel noted, the WCB case manager had already initiated some discussions with that employer as to the availability of modified work for the worker. The WCB’s October 11, 2018 decision that the worker was not entitled to wage loss benefits arising from the 2006 injury was based on the fact that the compensable right ACL insufficiency did not fully disable the worker prior to the 2018 injury and would not account for the worker’s inability to return to work in October 2018. On October 12, 2018, the case manager again advised the worker to contact the 2018 accident employer about returning to an accommodated position due to the continuing, preventative restrictions recommended by the treating orthopedic surgeon.

The evidence before the panel confirms that the 2018 accident employer advised the WCB on November 5, 2018 that the worker had not made any contact regarding a return to work with accommodation, and that on December 18, 2018, the accident employer advised that the worker had now provided their current restrictions to the employer, which were not too limiting but would impact the worker’s regular duties. At that time the employer’s representative indicated they were not sure whether the worker would participate in modified or alternate duties but noted the employer’s intention to make an appropriate offer. The panel also noted that the employer followed up with the WCB later that same day confirming that the employer had advised the worker that modified duties were available and that the worker advised they would not return to work if at a lesser wage.

The panel is satisfied that the employer offered modified duties to the worker and the worker did not accept that offer. Although the worker advised the employer that this was due to the reduced wages, the panel is satisfied that the worker’s decision was rather based on having already made plans to embark on another path. The panel further noted there were no discussions at that time relating to vocational rehabilitation processes that could have supported the worker’s decision to pursue an alternative career path, and the panel accepts the worker’s evidence that they chose of their own accord to act upon the advice of the treating orthopedic surgeon to find another less strenuous occupation and beginning in January 2019, undertook to complete educational upgrading and pursue training for a different occupation. The worker further testified that they completed this training in October 2020 and moved into a related job, on a term position basis, after that. While the panel acknowledges that the worker is entitled to choose a change of career direction, we find that by refusing the employer’s offer of modified duties so that they could pursue the training program, the worker effectively removed themself from any potential entitlement to wage loss benefits after October 6, 2018.

As noted above, for the worker to be entitled to wage loss benefits in this period, the evidence would have to support a finding that the worker sustained a loss of earning capacity arising from the compensable injury of January 7, 2006. Here, the evidence does not support a finding of total disability as a result of the 2006 accident but supports a finding that the worker was capable of a return to work with restrictions and that such work was available to the worker. The panel is therefore satisfied that the worker did not mitigate the effects of their injury by taking advantage of the opportunity to continue in their employment with the 2018 accident employer, albeit in an accommodated duties position. In the result, any loss of earning capacity sustained by the worker between October 6, 2018 and February 26, 2021 was not the result of the compensable accident of January 7, 2006 but was the result of the worker’s own choices.

On the basis of the evidence and on the standard of a balance of probabilities, the panel is satisfied that the worker is not entitled to wage loss benefits from October 6, 2018 – February 26, 2021 and the worker’s appeal of this question is denied.

Entitlement to wage loss and medical aid benefits after October 22, 2021 

The panel considered whether the evidence supports a finding that the worker sustained a loss of earning capacity after October 22, 2021 or required medical aid after that date, arising out of the injuries sustained in the workplace accident of January 9, 2006.

The panel noted that following the compensable right knee arthroscopy and ACL reconstruction surgery of February 27, 2021, the WCB medical advisor, on March 17, 2021, provided restrictions that would remain in place for 6 months following the surgery and noted that with a treatment plan that included 2-4 weeks of home convalescence and then, physiotherapy directed to recovery of range of motion and then knee strengthening, recovery was expected by the end of 6 months. The follow-up reporting by the orthopedic surgeon from March 23, May 23, July 16, and October 17, 2021 indicates the worker was progressing in their recovery as expected. By July 2021, the surgeon noted the worker was standing and walking “quite well” although experiencing some problematic arthritic symptoms in their knee. In October 2021 the surgeon noted again the worker was walking quite well, with good alignment and no effusion and full extension out of the knee, with flexion equal to the other knee. The surgeon noted that the worker was “having some aches and pains” related to their right knee but could not determine any cause and did not recommend any follow up other than symptomatic management with anti-inflammatory medications. The surgeon stated no further follow-up was required and the worker could continue with all activities as tolerated, but cautioned against "a lot of high impact or heavy physical labourious work."

The panel also reviewed the opinion provided by the WCB medical advisor on November 2, 2021. The medical advisor noted that the surgeon’s findings of right knee stability in response to “Lachman, anterior drawer and pivot shift testing was indicative of ACL functional integrity” and a favourable response to the surgery. The medical advisor further noted that a degenerative process in the worker’s right knee was medically accounted for in relation to the injury sustained in the January 9, 2006 accident and that the natural history of such a degenerative process “…is of generally progressive waxing and waning of symptomology that may be associated with variably reduced knee function”; however, the lack of clinical findings on October 13, 2021 did not support that the worker’s right knee pain at that time was associated with their degenerative right knee condition.

The panel noted that the treating orthopedic surgeon stated in their November 18, 2021 narrative report that the worker:

“…still has a knee that is in reasonable condition with respect to the meniscal and cartilage integrity. There is (sic) areas of chondromalacia and prior meniscectomy which could leave one with some degree of pain or discomfort and subsequent disability for the long-term. [The worker] has clearly lost a degree of function to [their] knee because of the injury….At this point I don’t have any further treatment plan for [the worker’s] right knee.”

Despite the medical opinions indicating the worker would be unable to return to their previous occupation, in the hearing, the worker confirmed that they have returned to full-time work in that occupation since October 2021. The worker testified that they have difficulty in managing the physical requirements of this work, including climbing and crouching but noted that their current employer was aware of the worker’s limitations when they were hired. The worker was unable to provide evidence as to the details of any loss of earning capacity since October 2021 resulting from their compensable right knee condition, explaining that:

Oh, I just haven't written them down. It hasn't been a ton of time because I just feel like I can't take that much time off anyways, because maybe it's been a week, as soon as I tweak it, I feel it and I know it's going to be an issue, and that's that. That's what I'm asking is just that when it does happen, that I'm able to take that time off to recuperate and then come back to work before it causes more damage, right?

In response to questioning as to their medical aid requirements in relation to this claim, the worker indicated they were seeking compensation for the costs of their ultrasound treatments on their knee but confirmed that they had not made any specific requests to the WCB in relation to that treatment. The worker further noted their concern that any future medical aid required in relation to this injury would not be covered by the WCB.

The worker testified in the hearing as to having ongoing problems in relation to their right hamstring which was harvested in the February 2021 surgery, although the worker indicated that they had not sought any medical attention in relation to this issue. The worker outlined that as a result, they have twice taken a couple of days off work. The panel also noted that the narrative report provided by the treating orthopedic surgeon on November 18, 2021 sets out that the worker “…has a bit of numbness around the incision from the ACL hamstring tendon harvest site. This is common and unlikely to completely resolve. It will not be of any functional consequence.” The panel makes no findings as to whether or not the worker is entitled to any wage loss or medical aid in relation to the impacts on their right hamstring as we notes that this has not been addressed or considered by the WCB in primary adjudication to date.

In this case, the question before the panel relates to a specific point in time. As such, the panel’s decision is a point in time decision. The worker’s submission focused on their prospective need for wage loss benefits and medical aid, but the evidence does not support that as of October 22, 2021, the worker had sustained any actual loss of earning capacity or required medical aid in relation to the injuries arising from the accident of January 9, 2006.

On the basis of the totality of the evidence before the panel, and on the standard of a balance of probabilities, the panel is satisfied that, as of October 22, 2021, the worker did not have any loss of earning capacity or require additional medical aid arising from the accident of January 9, 2006. Therefore, the worker is not entitled to wage loss and medical aid benefits after October 22, 2021 and the worker’s appeal of this question is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of January, 2023