The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are entitled to benefits after January 31, 2023. A hearing was held on November 30, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after January 31, 2023.

Decision

The worker is entitled to benefit after January 31, 2023.

Background

The worker filed a Worker Incident Report with the WCB on August 22, 2022 reporting an injury to their knees that occurred at work on August 16, 2022 and was reported to the employer on the same date. The worker described climbing off a lift, taking a step with their right foot, which buckled and caused them to fall. The worker sought medical treatment at a local emergency department on August 16, 2023, reporting stepping off a lift at work, twisting their right knee and not being able to weight bear. An x-ray taken on the same date indicated “No acute bone or joint abnormality is identified. There is no fracture or effusion on either side. On the left, a small osteochondroma arises from the proximal shaft medially.” Due to a long wait time, the worker left without being seen by a physician. The worker returned to a different emergency department on August 17, 2023 and was diagnosed with a right knee soft tissue injury. It was recommended the worker remain off work for one week to rest then follow-up with their family physician.

On August 23, 2022, the worker attended for an appointment with a sports medicine physician. The worker reported a bilateral knee injury from an accident at work a week previously. It was noted the worker was using a crutch to help with partial weight bearing, and complained of pain to their left medial knee with range of motion and had minimal swelling. The worker was diagnosed with a second degree meniscal strain on their right knee and a left knee strain/contusion. Physiotherapy and an MRI study were recommended. It was recommended the worker remain off work until September 11, 2022.

In a discussion with the WCB on August 26, 2022, the worker confirmed the mechanism of injury and advised their foreman witnessed the incident, after which the foreman and other coworkers, helped the worker to a truck, where they stayed for the rest of their shift. Once they were home after their shift, a family member took them to the local emergency department. The worker noted they could walk and weight bear on their left leg for short distances but that it puts a lot of strain on their left leg since they couldn’t weight bear on their right leg. The worker also confirmed they had not been scheduled for the MRI study yet and would be attending for physiotherapy shortly. The worker advised they had provided the physician’s sick note to the employer, who had no concerns or questions. The WCB accepted the worker’s claim on August 29, 2022.

The worker attended for an initial physiotherapy assessment on September 2, 2022. The physiotherapist recorded the worker’s complaints of pain with activity, especially walking, just in their knees and that they were wearing a brace on their right knee, without which the worker felt their knee “…wants to buckle in and to the side.” The treating physiotherapist examined the worker and found pain on palpitation of bilateral medial knee joint lines, left distal quad area and along the patellar joint line, with pain through bilateral adductors muscles and bilateral medial collateral ligament areas. A diagnoses of left medial collateral ligament (MCL) sprain, grade 2; right MCL sprain, grade 2 or 3 suspected; anterior cruciate ligament sprain, grade 3 suspected; and possible posterior cruciate ligament sprain, grade 3 were provided. The physiotherapist noted the worker’s treating sports medicine physician had recommended the worker remain off work until the results of the MRI study were received. At a follow-up appointment with the treating sports medicine physician on September 6, 2022, it was noted the worker’s knee was improving and the diagnosis was updated to a right knee MCL/medial meniscal injury. Further time off work pending receipt of the MRI study and physiotherapy was recommended. The treating physician noted that it would be 8 to 10 weeks from the August 16, 2022 workplace accident until the worker could return to their full regular duties.

The right knee MRI study was conducted on September 27, 2022 and indicated “Chondral fissuring in the medial facet of the patella which was present previously. Small focal area of bone marrow edema/bone bruise the anterior medial tibial plateau. Low grade partial tear of the upper lateral patellar ligament.” At a follow-up appointment with the sports medicine physician on October 27, 2022, the physician reviewed the MRI study with the worker and noted the medial tibial plateau bone contusion indicated in the MRI would heal within 6 to 8 weeks and advised the worker to wean from using the crutch. It was recommended the worker follow-up with the physician in 3 weeks.

By November 23, 2022, the worker’s treating physiotherapist recommended restrictions for the worker to return to work of avoid prolonged walking more than 20 minutes at a time with the ability to ice after; carrying and lifting up to 20 pounds for short distances; avoid ladders; avoid deep squats; avoid twisting on the right knee; ability to wear brace on right knee and use cane for two weeks. The worker’s file was reviewed by a WCB medical advisor on December 13, 2022. The advisor opined the worker suffered a possible meniscal injury to their right knee with a small area of bone marrow edema, with recovery to baseline expected in 8 to 12 weeks. With respect to the left knee, the diagnosis was a contusion, in the setting of pre-existing arthritis, which was expected to have improved within a few days to 1 to 2 weeks. The advisor further provided that the worker’s current diagnosis for their right knee was of an improving meniscal injury, consistent with the mechanism of the August 16, 2022 workplace accident and expected to return to baseline in 8 to 12 weeks from that accident. The WCB medical advisor agreed with the restrictions as noted by the worker’s treating physiotherapist and recommended they be reviewed in two weeks. On January 19, 2023, the worker attended for a further follow-up appointment with their treating sports medicine physician who noted the worker's left knee had improved, their right knee was improving and provided a diagnosis of a bone contusion/chondromalacia. It was noted the physician was not aware if there were other factors contributing to the worker’s delayed recovery and recommended the worker follow-up with their family physician.

On January 24, 2023, the WCB advised the worker it had been determined they had recovered from their compensable injury and their entitlement to benefits would end as of January 31, 2023. The worker requested reconsideration of the WCB’s decision to Review Office on February 23, 2023. The worker noted they continued to suffer the effects of their compensable knee injury and required further treatment. Included with the Request, was a January 18, 2023 report from the worker’s treating physiotherapist directed to the worker’s treating sports medicine physician requesting further investigation into the worker’s ongoing knee difficulties and a statement from the worker’s co-worker indicating they had witnessed the August 16, 2022 incident when the worker fell and noted immediate swelling to the worker’s right knee.

Review Office determined on April 12, 2023, the worker was not entitled to benefits after January 31, 2023. Review Office accepted and agreed with the opinion of the WCB medical advisor and the worker’s treating healthcare providers and found the worker’s knees had recovered to their pre-accident condition when the worker’s entitlement to benefits was ended by the WCB on January 31, 2023.

The worker filed an appeal with the Appeal Commission on August 9, 2023 and a hearing was arranged.

Reasons

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.

A worker is entitled to benefits under section 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Section 4(2) provides that 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 section 37 of the Act. Section 27 allows the WCB to provide a worker with such medical aid as the board considers necessary or advisable to cure or give relief to a worker or for the rehabilitation of a worker. 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.

Worker’s Position

The worker was self-represented, and provided a written submission with his Appeal of Claims Decision form. The worker made an oral presentation and responded to questions from the panel.

The worker's position was that he had not recovered from his August 16, 2022 workplace injury as at January 31, 2023, and should be entitled to benefits beyond that date. The worker submits that the decision to end his benefits was premature and that he was still experiencing symptoms and attending medical and physiotherapy appointments regularly and making progress at the time the benefits were ended.

Employer's Position

The employer did not participate in the appeal.

Analysis

This appeal is in respect of the question of whether the worker is entitled to benefits after January 31, 2023 in relation to the August 16, 2022 accident. For the worker’s appeal to succeed, the panel would have to determine that the worker continued to experience the effects of the compensable workplace accident beyond January 31, 2023 such that the worker either required further medical aid or continued to sustain a loss of earning capacity in relation to that injury. As detailed in the reasons that follow, the panel was able to make such findings.

In considering the worker’s appeal, the panel carefully reviewed the medical information on file. The panel noted that evidence indicates continuity in the worker’s reported symptoms and clinical findings from the date of accident to beyond January 31, 2023, and that although the WCB considered the worker to have recovered from the compensable workplace injury as of January 31, 2023, the worker’s physiotherapist continued treatment beyond that time. The panel draws attention to the physiotherapy notes which confirm that the worker's symptoms have been continuous and on-going. The panel also noted that the WCB medical advisor indicated that the restrictions placed on November 21, 2022 were to be in effect for 2 weeks and then reviewed, although there is no evidence that such a review occurred.

The WCB medical advisor's opinion is that there was a possible meniscal injury and states that an improvement to baseline would be expected in 8-12 weeks from the injury. The WCB medical advisor further opines that the pre-existing chondral fissuring, seen on the MRI of 2014, can also contribute to delayed recovery. The panel finds it is reasonable that the non-attendance at physiotherapy due to the worker's illness in September 2022 and the delay by WCB in reinstating coverage contributed to the delay in recovery. Further, the panel finds it reasonable that the pre-existing chondral fissuring could have also contributed to a delay in recovery.

As a result, the panel finds, on a balance of probabilities, that the worker had not recovered from the effects of the compensable injury as of January 31, 2023, and suffered a further loss of earning capacity and required further medical aid beyond that date as a result of his August 16, 2022 workplace accident and injury. The panel therefore finds that the worker is entitled to further benefits after January 31, 2023. The worker's appeal is allowed.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of December, 2023