The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the graduated return to work plan effective June 9, 2023 is appropriate. A hearing was held on December 5, 2024 to consider the worker's appeal.

Issue

Whether or not the graduated return to work plan effective June 19, 2023 is appropriate.

Decision

The graduated return to work plan effective June 19, 2023 is not appropriate.

Background

The worker filed a Worker Incident Report with the WCB on November 7, 2022, reporting that on November 5, 2022, they injured their right knee while walking fast to assist a client. The worker sought medical treatment from a sports medicine physician on November 6, 2022 and reported severe pain to their right knee after a twisting injury. The worker advised they self-treated the injury with ice and an over-the-counter pain and anti-inflammatory medication after their shift on November 5, 2022 but had difficulty sleeping due to pain. The sports medicine physician examined the worker and found a small effusion, tenderness at the medial joint ligament, decreased range of motion and inability to weight bear on the right leg. The treating physician diagnosed a right medial collateral ligament sprain, recommended a brace and physiotherapy once the pain improved. The worker was placed off work for 3 weeks.

In a discussion with the WCB on November 8, 2022, the worker confirmed the mechanism of injury. They stated that they were walking fast to assist a client who needed a lot of help when they felt a pop and twist in their right knee. The worker noted they felt immediate paid and had to sit down for the rest of their shift. They elevated their right leg, applied an ice pack and took pain medication. The worker advised they were diagnosed with a right knee grade 1 medial collateral ligament sprain, given a brace and crutches and advised to start physiotherapy when the pain and swelling dissipated. The WCB accepted the worker's claim on November 18, 2022, and the payment of various benefits started.

At a follow-up examination on November 25, 2022, the treating sports medicine physician noted the worker's complaints of ongoing right knee pain and referred the worker for an MRI study. The physician placed the worker off work for a further 5 weeks. An initial physiotherapy assessment took place on November 29, 2022. The worker reported walking fast and twisting their right knee, hearing a loud pop and experiencing severe pain. The worker noted they were currently unable to weight bear. Testing indicated reduced range of motion in the worker's right knee, with limitations noted due to guarding. The treating physiotherapist diagnosed a right knee medial collateral ligament sprain and queried meniscal involvement due to limitations on extension. It was also recommended that the worker remain off work as they were unable to weight bear. A report from a second physiotherapist was received on December 9, 2022. The worker reported a painful right knee, which was improving with the use of the brace, but aggravated with walking on uneven surfaces. The physiotherapist indicated the worker had pain to their right knee on extension and flexion with tenderness on palpitation of the medial aspect of the knee joint and provide a diagnosis of a right medial collateral ligament sprain. Total disability for 2 weeks was recommended. A right knee MRI study was conducted on December 13, 2022, and indicated a radial tear in the posterior root and horn of the medial meniscus and patellofemoral chondromalacia.

On January 6, 2023, the worker had a virtual appointment with the treating sports medicine physician for a follow-up appointment. The worker reported ongoing right knee pain and due to a non-compensable health issue, had not been able to attend for physiotherapy. The physician noted due to the ongoing difficulties and the medial meniscus tear indicated on the MRI study, they were referring the worker to an orthopedic surgeon. It was recommended the worker continue to remain off work for a further 3 weeks. A physiotherapy progress report for January 12, 2023, indicated ongoing right knee pain, described by the worker as constant sore/achy feeling with intermittent sharp pains aggravated when going up and down stairs. The treating physiotherapist noted the new diagnosis of a right medial meniscus tear and also recommended the worker remain off work.

The worker attended for a further follow-up physiotherapy appointment on January 28, 2023 reporting sharp pain with movement in their right knee, shooting pain into their knee cap, sticking/catching feeling when going from bending to straightening and feeling unstable when ambulating with the brace. The worker also noted their knee got inflamed and aggravated after short periods of ambulation. Knee flexion and extension was still noted to be reduced on the worker's right knee and tenderness was noted on palpitation to the right tibiofemoral joint line.

The physiotherapist recommended the worker perform sedentary duties noted to be remain seated for majority of the time, no lifting, no bending, standing less than 10 minutes at a time and walking less than 5 minutes at a time. A graduated work schedule of 1 day per week for 3 hours was also recommended. The employer was provided with the restrictions on January 30, 2023. Discussions regarding modified duties took place between the employer, the worker and the WCB with the worker returning to work on a graduated basis on March 4, 2023.

At the request of the WCB, the worker's file was reviewed by a WCB medical advisor on February 21, 2023. The advisor opined the worker's current diagnosis was a right knee medial meniscus tear and patellofemoral chondromalacia based on the December 13, 2022 MRI and medical reporting on file. The advisor further opined that the accepted compensable diagnosis was a right knee medial collateral ligament sprain however, it was noted the MRI study did not find any injury to the medial collateral ligament. The WCB medical advisor went on to provide medial meniscus tears can occur due to traumatic injuries such as a twisting injury to the knee with a planted foot, a fall involving landing on a flexed knee, landing from a jump and a varus or valgus force to the knee. On March 10, 2023, the WCB provided the worker with a letter advising that the WCB was unable to accept ongoing responsibility for their right knee difficulties after March 16, 2023. The WCB noted a medical advisor found a medial meniscus tear would occur as a result of twisting with a planted foot and as the worker did not identify any specific twisting in their description of the mechanism of injury, the WCB was unable to relate their current difficulties with the November 5, 2022 workplace accident. The worker requested reconsideration of the WCB's decision to the Review Office and on March 23, 2023, the Review Office determined the worker was entitled to medical aid and wage loss benefits after March 16, 2023.

A WCB physiotherapy consultant reviewed the worker's file on May 10, 2023. After discussion with the worker's treating physiotherapist, a graduated return to work plan was developed. The worker's restrictions were noted to be standing for 10 minutes, walking for 5 minutes, and lighter type duties: avoid lifting greater than 10 pounds bilaterally and 5 pounds with one arm. A schedule of May 15, 2023 to May 26, 2023 at 4 hours per day, 3 days per week; May 29, 2023 to June 9, 2023 at 6 hours per day, 3 days per week; June 12, 2023 to June 23, 2023 at 6 hours per day, 5 days per week after which, the worker could resume normal hours was recommended. The graduated return to work plan was provided to the worker and the employer on May 15, 2023. On May 18, 2023, the WCB provided the worker with a letter confirming the graduated return to work plan to start on May 23, 2023, with a resumption of normal hours by July 3, 2023.

On May 19, 2023, the worker requested reconsideration of the WCB's decision on the graduated return to work plan (“GRTWP”) to the Review Office, noting disagreement with the plan. On May 25, 2023, the worker was seen by their treating sports medicine physician who noted the worker's right knee pain worsened at work the previous week and placed the worker off work until June 22, 2023. It was noted that when the worker returned to work, it would be sedentary duties only. Discussions took place between the WCB, the employer and the worker regarding the modified duties available and it was determined on June 23, 2023, the worker's restrictions were seated sedentary workplace duties; no lifting; no bending; duties involving standing not to exceed 10 continuous minutes; duties involving walking not to exceed 5 continuous minutes; ability to take micro-breaks as required; and ability to elevate right leg as needed. The graduated dates and hours were to be pursuant to the following schedule: June 19, 2023 to July 2, 2023 at 4 hours per day, 3 days per week; July 3, 2023 to July 16, 2023 at 6 hours per day, 3 days per week; July 17, 2023 to July 30, 2023 at 6 hours per day, 5 days per week; and July 31, 2023 to resume normal hours. On June 27, 2023, the worker advised the Review Office they wished to proceed with their request for reconsideration based on the WCB's June 23, 2023 decision letter pertaining to the modified duties and GRTWP effective June 19, 2023.

The Review Office found on June 29, 2023 that the GRTWP effective June 19, 2023 was appropriate. The Review Office determined the restrictions set out by the worker's treating healthcare providers were appropriate based on the worker's compensable injury and agreed with the opinion of the WCB orthopedic surgery consultant that if the restrictions were followed, they would not pose any risk to the worker's right knee difficulties. The Review Office further found the modified duties offered by the employer, set out in a June 13, 2023 file note, were appropriate and followed the worker's restrictions. In addition, the Review Office found the recommended schedule of increasing the worker's hours gradually over two-week periods was reasonable and would be in keeping with the worker's pre-accident schedule of 32 to 44 hours per week after 6 weeks.

The worker's representative filed an appeal with the Appeal Commission on August 20, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act, and policies made by the WCB's Board of Directors. The Act and regulations in effect on the date of the incident are applicable.

Section 4(1) of the Act provides that a worker is entitled to benefits when it is established that a worker has been injured by accident arising out of and in the course of employment. The Act also 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.

The Act sets out, at Section 22, that every worker must take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury, must seek out, co-operate in and receive medical aid that promotes the worker’s recovery and must 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. This is the duty to mitigate. Workers are obligated under the Act to participate cooperatively in their recovery and safe return to work. WCB Policy 44.10.30.60, Co-operation and Mitigation in Recovery, sets out the responsibilities of both workers and the WCB in ensuring compliance with Section 22 of the Act (the “Mitigation Policy”).

The WCB has established Policy 43.20.25, Return to Work with the Accident Employer, which outlines the WCB’s approach to the return to work of injured workers through modified or alternate duties with the accident employer (the “RTW Policy”).

The RTW Policy provides that the objectives of the employer to returning an injured worker to work are as follows:

1) Return to the same work with the accident employer; 

2) Return to modified work with the accident employer; 

3) Return to different (alternate) work with the accident employer.

The modified or alternate work needs to be suitable work and the RTW Policy sets out that suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker’s pre-accident employment, aptitudes, skills, and what work is available.

Worker’s Position

The worker was represented by a worker advisor, who made an oral submission and provided a written submission on the worker's behalf. The worker was present at the hearing and responded to questions from their advisor and the panel.

The worker's position was that the GRTWP was not appropriate, and that they should be entitled to further benefits.

The worker states that the WCB spoke with the worker’s physiotherapist about the GRTWP, but that there is no documentation on the file from the physiotherapist confirming the physiotherapist agreed with the graduated return to work plan or was provided with a copy of the plan.

The worker states that the RTW Policy directs the WCB to become involved when the worker and the employer disagree about the modified duties and whether they are suitable. The RTW Policy states that the WCB must compare the worker’s compensable medical restrictions and capabilities to the demands of the work. The worker’s position is that the WCB did not show any curiosity about the physical demands of the worker’s job. The worker states that there is no indication that the WCB spoke with the employer directly to clarify the duties and demands of the job, nor did the employer provide details of the demands of the job. The evidence before the panel is that dispensing medication is not a seated job and requires a lot of movement within the dispensary. The worker states that a workplace analysis ought to have been conducted.

The position of the worker is that the WCB failed to meaningfully assist the worker in identifying and addressing the safety risks in the GRTWP and therefore the WCB was in contravention of the Mitigation Policy.

The worker submits that they reasonably mitigated the effects of their injury by following the recommendations of their treatment providers and by following with their home exercise plan. The worker also states that they reasonably participated in the return to work process, despite their view that the duties were outside their restrictions.

The worker is seeking that the panel find the GRTWP was not appropriate for them.

Employer’s Position

The employer did not participate in the appeal.

Analysis

For the worker's appeal on this issue to be successful, the panel must find that the worker's graduated return to work plan effective June 19, 2023 is not appropriate. The panel is able to make that finding, for the reasons that follow.

The evidence is that the worker sustained a full right knee medial meniscal tear while working as a pharmacist on November 5, 2022. The worker received medical aid and wage loss benefits as a result.

The evidence of the worker is that when they commenced the GRTWP, they were provided with a stool with wheels, which had to be raised up in order to reach items as the counters in the pharmacy were at standing height. The worker states that this made the stool unsteady and that the floor was tiled. The worker stated that the seating arrangement caused them to feel unstable and they were afraid they might fall off the stool. The worker kept their leg elevated by using boxes or other items under the counter while seated. The worker indicated that this added to the feeling of instability and discomfort. The worker says there were many instances where they could not remain seated and that they were often moving from a seated position to a standing position. The worker was concerned about causing more harm to their knee.

The evidence is that the worker attended a minor injury clinic on May 21, 2023 because of continued pain and swelling to their right knee. The physician noted that the worker was having trouble managing their activities of daily living and having trouble managing work. The worker was also receiving cortisone injections at that time to assist with the pain. In a Physiotherapy Initial Report dated June 8, 2023, it is noted that the worker’s physician recommended that the worker be off work, and that the physician would reassess by June 22, 2023. On June 23, 2023 the worker’s treating physician noted that the worker continued to have significant pain with ambulation and an antalgic gait with decreased range of motion, and limited standing and walking ability.

The opinion of the WCB medical consultant was that if the worker’s restrictions were followed, they would not pose any risk to the worker's right knee difficulties. The panel finds however that the evidence supports that the duties were not sedentary. The restriction of seated and sedentary duties was not possible in the context of the role of dispensing medication, as the worker had to move around the pharmacy/dispensary to speak to the customers, prepare medications, print labels, provide advice, take payment, etc. Further, the restriction of not walking more than five continuous minutes was often not possible for the worker, from parking to getting to their workspace.

There appears to have been a lack of understanding by the WCB of the actual duties of the worker. The worker’s regular duties remained as is and were not modified. The only change was that the worker was expected to continue their regular duties while seated. This restriction, however, could not be followed, and therefore, the panel is satisfied that the work posed a risk of reinjury to the worker and was not suitable.

The evidence of the worker is that they repeatedly reported concerns to their treating medical professionals that the work duties did not feel safe. These concerns were not given appropriate consideration. The panel is of the view that the WCB failed to assist the worker in determining why the worker felt unsafe and in investigating whether the worker’s concerns were reasonable and valid.

In the panel's view, it is clear, given the evidence of the worker and their reporting to the treating medical professionals and the WCB of their concerns that their duties were not in line with their restrictions. The panel is satisfied, on a balance of probabilities, that the graduated return to work plan was not appropriate in the circumstances.

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 31st day of January, 2025