The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer appealed the Workers Compensation Board ("WCB") decision that the worker is entitled to partial wage loss benefits for the period April 5, 2024 to July 16, 2024. A file review took place on February 10, 2025 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to partial wage loss benefits for the period April 5, 2024 to July 16, 2024.

Decision

The worker is entitled to partial wage loss benefits for the period April 5, 2024 to July 16, 2024.

Background

The Employer’s Accident Report provided to the WCB on February 27, 2024 outlines that on February 21, 2024, the worker injured their left knee when they slipped on ice while opening a gate, and they reported the incident to the employer on February 23, 2024.

When the WCB spoke with the worker on February 28, 2024, the worker confirmed they slipped on ice while opening a gate at work on February 21, 2024, and injured their left knee. The next day, they started to experience pain, swelling and limited range of motion in their knee and difficulty walking, and they did not attend work on February 23, 2024 due to the injury. The worker reported they completed a Notice of Injury with the employer on February 26, 2024 and returned to light duties that day. The WCB accepted the worker’s claim on March 5, 2024.

The worker first attended physiotherapy on March 6, 2024. The physiotherapist recorded the worker’s report of intermittent left posterior knee pain, occasional pain to lateral quad/iliotibial band area, and frequent clicking, and found the worker had an antalgic gait, decreased range of motion in the left knee and positive McMurray's and Thessaly testing. The physiotherapist diagnosed left hamstring and meniscus sprain, with a possible meniscal tear, noting the worker could work regular hours and duties but needed to be able to modify their position and avoid prolonged standing and walking.

The worker provided a Worker Incident Report to the WCB on March 8, 2024.

The employer contacted the WCB on March 27, 2024 to advise the worker was working at their regular duties, which were sedentary with minimal walking, and that the worker had advised the employer on March 23, 2024 while walking at home, their knee "popped" and by the following morning, was swollen. The worker sought medical treatment at a local clinic and was placed off work until April 27, 2024. On March 27, 2024, the worker confirmed the March 23, 2024 incident as described by the employer, and that they sought treatment the next day and were prescribed a knee brace and crutches. The worker confirmed they had been working regular duties at full hours before March 23, 2024, but contacted the employer to advise they were unable to drive due to the knee brace. The worker confirmed they discussed modified duties with the employer but advised that the treating physician had placed them off work.

The WCB received a copy of the Absenteeism Certificate provided by the treating physician, which outlined that the physician recommended the worker remain off work from March 24, 2024 to April 27, 2024.

The employer confirmed to the WCB the offer of sedentary duties but that the worker stated they could not drive and had difficulty walking due to the knee brace. The employer reported they requested the worker have their physician complete a functional abilities form when they were able to drive.

The treating physician’s report from the worker's March 24, 2024 visit indicated the worker's report of pain with movement, primarily behind the knee and radiating medially down the lower leg and also to the top of the knee, radiating up into the thigh, no bruising or redness noted, and mild swelling around the knee. The physician diagnosed a medial meniscus tear vs patellar subluxation, ordered an MRI study, and prescribed a brace and crutches, recommending the worker be off work for 4 weeks.

At physiotherapy on April 3, 2024, the worker reported the March 23, 2024 incident and their inability to bear weight on the knee since then. The physiotherapist observed an antalgic and slow-paced gait with decreased weight bearing on the left and provided a new diagnosis of a suspected meniscus tear, recommending restrictions of sedentary work only, no standing/walking and no stair climbing. The Work Capabilities Form completed by the treating physiotherapist set out that the worker could return to work with those restrictions on reduced hours of 4 hours per day.

The employer advised the WCB on April 8, 2024, the worker had returned to work that day on modified duties at 4 hours per day for 2 weeks.

The MRI study of April 11, 2024 "Complete tear of the posterior root ligament of the medial meniscus", mild osteoarthritis in the patellofemoral compartment and minimal findings in the medial compartment.

On April 16, 2024, the worker confirmed the details of the March 23, 2024 incident to the WCB and described their current symptoms as including pain at their inner knee aggravated with prolonged standing, swelling and pain when going up and down stairs, increased when going down the stairs. The worker advised they were not using the crutches anymore but continued to use the knee brace. The worker confirmed working 4 hours per day, as recommended by their treating healthcare providers, even though the employer had offered full time duties. The worker described that the employer built a platform under their desk so they could elevate their leg and assigned a helper. The WCB advised the worker it considered they could work full time to mitigate their loss of earning capacity and encouraged the worker to do so.

A WCB medical advisor reviewed the worker’s file on April 25, 2024 and provided an opinion that the worker could perform sedentary duties with no requirement for reduced hours, with appropriate restrictions in place. The WCB advised the worker on April 25, 2024 that they were not entitled to partial wage loss benefits as it was their decision to work only 4 hours per day and the WCB determined they were capable of working full time.

On April 29, 2024, the worker contacted the WCB to request closure of the WCB claim, so they could open a claim through the employer's disability insurer as they felt they could not work more than 4 hours per day. The WCB wrote to the worker on April 30, 2024 advising their claim was closed at their request and noting the WCB's position that the incident at home on March 23, 2024 could have been an aggravation of the February 21, 2024 workplace accident.

The employer contacted the WCB on May 2, 2024 to advise the worker continued to refuse to work more than 4 hours per day on modified sedentary duties but was not reporting any concerns with their modified duties. The WCB confirmed to the employer there was no medical evidence to support why the worker could not work more than 4 hours per day.

In a May 28, 2024 report, the treating physician noted the worker was awaiting a referral to an orthopedic surgeon and should continue working light duties. On July 16, 2024, the treating physician completed a Work Capabilities Form indicating the worker should be seated while at work, with no standing or walking but could work a full 8 hour shift. At physiotherapy on July 24, 2024, the physiotherapist noted the worker's range of motion plateaued and they were awaiting a consultation with an orthopedic surgeon and recommended sedentary duties with no restrictions on hours worked.

On August 3, 2024, the worker requested Review Office reconsider the WCB's decision they were not entitled to wage loss benefits, noting the treating healthcare providers supported working reduced hours and they continued to experience difficulties as a result of the workplace accident. On September 10, 2024, the employer provided a submission to Review Office, and the worker provided a response on September 27, 2024. On October 2, 2024, Review Office determined the worker was entitled to partial wage loss benefits from April 5, 2024 to July 16, 2024.

The employer filed an appeal with the Appeal Commission on October 17, 2024 and a file review was arranged.

Reasons

Applicable Legislation

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.

Section 4(1) of the Act provides that the WCB will pay compensation when a worker has sustained personal injury by accident arising out of and in the course of employment, and s 4(2) outlines that a worker injured in such an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. 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 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.

Employer’s Position

The employer’s position, as set out in their October 17, 2024 Appeal of Claims Decision form, is that the worker is not entitled to partial wage loss benefits from April 5 to July 16, 2024 as the employer had appropriate modified duties available through this period and the medical evidence does not indicate any reason why the worker could not perform those duties on a full time basis.

The employer’s representative outlined that the worker successfully performed the provided modified duties from April 8 to May 14, 2024 working four hours daily and continued to perform the provided modified duties for five hours daily until July 16, 2024, when the worker resumed their full time hours, while still on modified duties.

Worker’s Position

The worker did not participate in the appeal.

Analysis

The question in this appeal is whether the worker is entitled to partial wage loss benefits from April 5 to July 16, 2024. For the employer’s appeal to succeed, the panel would have to determine that the worker did not sustain a loss of earning capacity during that time as a result of the injuries sustained in the workplace accident of February 21, 2024. As detailed in the reasons that follow, based on the evidence before the panel, we were unable to make such a finding and therefore, the employer’s appeal is denied.

The panel acknowledges and accepts that the employer offered the worker modified duties that aligned with the worker’s restrictions and noted that the worker participated in those duties. While the employer indicates that the worker had no complaints about the duties, there is some evidence in the file that suggests the worker did encounter some issues. Regardless, the evidence confirms that the worker participated in the modified duties through the period from April 5 to July 16, 2024, and beyond.

The employer’s appeal is focused on the worker’s refusal of full time hours during this period, which the employer consistently confirmed were available, such that in the employer’s view, the worker could have avoided any loss of earning capacity.

The panel therefore considered the evidence in relation to this question in particular. The panel noted that after the accident, the treatment providers initially placed limits on the worker’s specific job duties but not on the hours worked; however, this changed after March 23, 2024 when the worker sustained another injury to their left knee while at home. The details of the restrictions outlined by the worker’s treatment providers after that date are consistent with the worker’s understanding that they were not to work full time until after July 16, 2024, when both the treating physician and physiotherapist agreed that the worker could return to sedentary work without any restriction on the hours worked. More specifically, when the worker returned to modified duties as of April 8, 2024, they did so on the basis of the advice of their treating physiotherapist who supported a return to work at four hours daily with other restrictions in place. The treating physiotherapist’s April 3, 2024 Work Capabilities Form clearly indicates this limitation, to be reassessed two weeks later. In completing the April 17, 2024 Work Capabilities Form, the treating physiotherapist repeats this limitation, to be reassessed within one month. On May 14, 2024, the treating physician outlined similar restrictions but indicated the worker could increase to working five hours daily, and on July 16, 2024, the physician authorized the worker’s return to full time hours.

There is evidence that despite the treatment provider’s recommendations and without any medical opinion to the contrary, on April 16, 2024, the WCB advised the worker that it likely would not support a return to work on less than a full time basis. The WCB did not address this question with the worker’s treatment providers at that time but requested a review by a medical advisor. The WCB medical advisor’s opinion of April 25, 2024 indicated the worker was capable of fulltime hours but offered no reasoning or justification for contradicting the recommendations of the treatment providers. The panel also noted the WCB medical advisor did not engage the treatment providers as to this difference of opinion, and in their April 26, 2024 letter to the treating physician, made no comment whatsoever as to the worker’s ability to work full time.

The panel considered the employer’s position that there is no evidence to justify the worker’s return to modified duties on reduced hours during the period in question. As noted above, there is also no evidence to support the contrary opinion provided by the WCB medical advisor, and no indication that the WCB or its medical advisor took any steps to inquire further of the treatment providers. In the circumstances, we find that the worker appropriately relied upon the recommendations and advice of their treatment providers by actively participating in the return to work program as and to the extent recommended, and by resuming full time hours when advised to do so.

Based on the evidence and on the standard of a balance of probabilities, the panel is satisfied that the worker sustained a loss of earning capacity between April 5 and July 16, 2024 as a result of the compensable workplace injury and therefore is entitled to partial wage loss benefits during that period. The employer’s appeal is therefore 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 14th day of February, 2025