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 benefits for the September 3, 2024 incident at home in relation to the October 30, 2017 workplace accident; 

2. They are not entitled to further job search services beyond 28 weeks; and 

3. Their permanent partial impairment rating of 1.95% and the monetary award of $1,370.00 have been correctly calculated.

A hearing was held on February 12, 2025 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to benefits for the September 3, 2024 incident at home in relation to the October 30, 2017 workplace accident; 

2. Whether or not the worker is entitled to further job search services beyond 28 weeks; and 

3. Whether or not the worker’s permanent partial impairment rating of 1.95% and the monetary award of $1,370.00 have been correctly calculated.

Decision

1. The worker is entitled to benefits for the September 3, 2024 incident at home in relation to the October 30, 2017 workplace accident; 

2. The worker is entitled to further job search services beyond 28 weeks; and 

3. The worker’s permanent partial impairment rating of 1.95% and the monetary award of $1,370.00 have been correctly calculated.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 135/23, dated December 15, 2023. The background will therefore not be repeated in its entirety.

In summary, the worker has an accepted WCB claim for an aggravation of a right knee osteochondral fracture from the medial femoral condyle that occurred at work on October 30, 2017, when they slipped on outdoor steps while at work. The worker underwent multiple surgeries and was referred for vocational rehabilitation services on December 27, 2019.

The worker’s file was reviewed by a WCB physiotherapy consultant on January 3, 2020 to determine if the worker was eligible for a permanent partial impairment (“PPI”) rating. The consultant reviewed the medical information on file and determined the worker was likely at maximum medical improvement and noted the worker had a major pre-existing condition that would affect the rating. The consultant recommended that active guided left vs right knee mobility and cosmetic impairment be evaluated. Due to the COVID-19 pandemic, the WCB was unable to examine the worker until August 16, 2021. After examining the worker, the WCB physiotherapy consultant indicated the difference in the active guided range of motion between the worker’s right knee and left knee resulted in a 1.9% rating, which was reduced by 50% due to the worker’s pre-existing condition and a 0.95% rating was calculated. The consultant also noted a 1.0% cosmetic impairment rating, which resulted in a total combined rating of 1.95% for the worker. On August 17, 2021, the worker was advised of the results of the examination and provided with a $1,370.00 monetary award.

A vocational rehabilitation plan was developed for the worker with an end date of January 19, 2023, and the worker was advised on January 17, 2023 that their wage loss benefits would be reduced, effective January 19, 2023, to the earning capacity of the National Occupational Classification (NOC) they had been deemed capable of employment in. The worker requested reconsideration of the WCB’s decision and pursuant to Appeal Commission Decision No. 135/23, it was determined the worker’s vocational rehabilitation plan should be extended.

On February 6, 2024, the WCB vocational rehabilitation consultant contacted the worker to provide a progress report. The consultant advised a new vocational rehabilitation plan would be developed for the worker and noted the job market in the worker’s geographic area had improved since the previous plan was implemented. The consultant advised that an in-person meeting would be arranged after further review of the worker’s file and the job market. On April 11, 2024, a letter was sent to the worker from the consultant indicating they had been unable to meet in person and provided the worker with a list of viable occupations in their geographic area. The vocational rehabilitation consultant advised the worker, based on the labour market and their permanent work restrictions, a vocational rehabilitation plan under NOC 14100 General Office Support Workers would be developed. On April 18, 2024, a Vocational Rehabilitation Plan under NOC 14100 was developed for the worker to start on April 30, 2024 and end on July 30, 2024. It was noted the worker would be provided with 13 weeks of job search services.

On June 25, 2024, the worker contacted the WCB to advise of their belief that the 13 week job search period was not enough time. The worker noted that they watched their children during the summer break from school and felt once the children returned to school in the fall, they would be able to find employment. The worker felt a time period closer to 1 year would be appropriate. On June 28, 2024, the WCB vocational rehabilitation consultant responded to the worker’s request indicating the job search time could not be extended as the WCB’s policy “…outlines job search week entitlements based on the level of education. The maximum weeks of job search weeks for workers with a high school education is 13 weeks as per the 2024 job search tables.” It was noted the WCB had requested the worker obtain and provide them with copies of their high school transcripts since 2021, which the worker had not done. In addition, the consultant noted several attempts had been made since the in-person meeting on April 30, 2024 to contact the worker to discuss their job search progress and that several job postings and leads had been provided to the worker. The WCB stated they were unable to extend the job search while the worker watched their children over the school summer break.

The WCB vocational rehabilitation consultant requested a deem committee be convened and on July 25, 2024, the committee accepted the recommendation the worker be deemed employable within NOC 14100 and their wage loss benefits be reduced by the starting wage for that NOC. In a telephone conversation with the worker on July 31, 2024, the WCB advised the worker as of July 30, 2024, they had been deemed fully employable within NOC 14100 and their wage loss benefits had been reduced.

The worker contacted the WCB on September 5, 2024, to advise that on September 3, 2024 while going down stairs at home, their knee buckled and they fell, hitting their ribs on the handrail. They described having to sit for five minutes due to a feeling of shock. The worker attended a local hospital due to pain and swelling in their knee. The worker advised the hospital took x-rays of their knee and their ribs, provided them with crutches and advised the worker not to walk on their right leg. On September 6, 2024, the worker’s case manager contacted the worker to discuss the September 3, 2024 incident. The worker advised while going down an outside staircase on that date, they felt their right knee buckle, which caused them to fall on their left side, striking their lower left chest/ribs on the metal railing. The worker then described falling onto gravel and feeling a “snap” to the back of their right knee. They did not attend for medical treatment initially, self-treating the injury to their knee with ice and the following day, they noticed a bump on the inside of their right knee. The worker noted they were driven to the hospital on September 5, 2024 where x-rays were conducted and they were advised there was a bone fragment in their right knee and possible torn ligaments to the inside of the knee. The WCB case manager advised the worker that the medical information on file prior to the September 3, 2024 incident did not indicate any instability to their right knee and the medical information from that incident would need to be reviewed to determine if there was a connection to the 2017 workplace accident.

The WCB received copies of the assessment report and x-rays for the worker’s attendance at a local hospital on September 5, 2024. The assessment noted the worker presented with complaints of right knee pain after a fall from stairs 2 days previously. The worker reported immediate sharp pain and swelling but no radiating pain. It was also noted that the worker advised they could not walk that day but could ambulate with a limp the following day. The worker’s history of a right femoral condyle fracture in 2017 and loose body removal in 2018 was noted, with the worker advising they were experiencing buckling and occasional locking in the same knee. The worker also reported pain over their left ribs after the fall. Upon examining the worker, the treating physician found swelling over the medial condyle of the tibia and patellar area, and tenderness over the medial patellar aspect, medial femoral and tibial condyle with forced extension and Valgus stress testing noted to be painful. With respect to the worker’s ribs, tenderness was noted over the lower left area. The physician noted the x-rays indicated “No bony injury apart from a loose body in the proximal part of the medial knee joint. Mild arthritic changes over the tibial surface” for the worker’s right knee and a fracture of the 11th rib on the left side for the worker’s chest. It was recommended that the worker continue icing, taking over-the-counter pain medication and using crutches to walk. It was further recommended that the worker have their knee reassessed for possible ligament tearing in 2 to 3 weeks after the pain and swelling has subsided.

The worker requested reconsideration of the WCB’s decision to end their job search entitlement to the Review Office on September 9, 2024. The worker noted their disagreement with the 13 weeks provided and believed they should be entitled to further time due to the Appeal Commission decision.

The WCB provided the worker with a decision letter on September 19, 2024, advising the WCB would not accept responsibility for the injuries the worker sustained at home on September 3, 2024 as it had been determined the October 30, 2017 workplace accident was not the dominant or primary cause of the injuries sustained on September 3, 2024. On October 1, 2024, the worker requested reconsideration of this decision by the WCB. In their submission, the worker advised their treating healthcare provider supported the injuries they sustained were as the result of the compensable injury from the workplace accident.

On October 4, 2024, the WCB provided the worker with a formal decision letter setting out that they were deemed on July 30, 2024 to be capable of employment within NOC 14100 and their wage loss benefits were reduced based on the minimum wage of that NOC. On October 16, 2024, a revised decision letter was sent to the worker correcting the wage loss amount set out in the previous letter.

The Review Office determined on October 16, 2024, the worker was not entitled to benefits in relation to the September 3, 2024 incident that occurred at home. The Review Office accepted and agreed with the findings of the worker’s treating orthopedic specialist on August 6, 2024 that indicated no major abnormality in the worker’s right knee. Further, the Review Office found the medical evidence did not support the worker had any structural abnormalities to account for their right knee difficulties and could not determine the October 30, 2017 compensable injury was the cause of the worker’s fall on September 3, 2024.

The Review Office further determined on November 1, 2024, the worker’s PPI rating of 1.95% and monetary award of $1,370.00 were correct and that the worker was entitled to further job search weeks as part of their Vocational Rehabilitation Plan. The Review Office accepted and agreed with the examination conducted by the WCB physiotherapy consultant on August 16, 2021 and found their calculations to be correct, including the 50% reduction in the rating due to the worker’s pre-existing condition.

With respect to the worker’s entitlement to further job search weeks, the Review Office acknowledged the worker’s belief that 13 weeks was not sufficient and noted a formal decision letter was not provided to the worker regarding their deemed earning capacity until October 4, 2024, which was revised on October 16, 2024, despite the end of the job search weeks being July 30, 2024. In addition, the Review Office determined based on the file information, the worker met the requirement under the WCB’s policies to have less than a high school diploma, which according to the policies, required the WCB to provide the worker with 28 weeks of job search services. The worker’s file was returned to the WCB for further adjudication.

The worker filed an appeal with the Appeal Commission on November 25, 2024 with respect to their entitlement to benefits in relation to the September 3, 2024 incident at home. On December 2, 2024, the worker filed an appeal with respect to their entitlement to 28 weeks job search services and on December 11, 2024, the worker filed an appeal with respect to their PPI rating and monetary award. A hearing for all issues was arranged and heard on February 12, 2025.

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 in effect as of the date of the worker’s accident are applicable.

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. Under Section 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.

Section 27 allows the WCB to provide a worker with such medical aid as the board considers necessary to cure or provide relief from an injury resulting from an accident. The Act specifically provides under this Section that the board may make such expenditures as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker could experience long-term loss of earning capacity.

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. The board determines the degree of a worker's impairment expressed as a percentage of total impairment. The calculation of the award for worker’s impairment is set out in the Act at Section 38(2). Manitoba Regulation 132/2020, Adjustment in Compensation Regulation, provides that a permanent partial impairment award made in respect of an injury sustained in 2017 shall be $1,370 per full percentage point of impairment rating.

WCB Policy 44.10.80.40, Secondary Injury (the “S.I. Policy”) is applicable herein and sets out when a secondary injury will be compensable. The Policy states that the WCB determines an injury is a secondary injury where:

• it is caused to the worker by an intervening incident, event or exposure ("intervening event"); 

• the intervening event is not work related; and, 

• there is a causal link or relationship between the intervening event and the previous workplace accident.

The S.I. Policy provides that a secondary injury will be compensable in the following circumstance:

(i) when the dominant cause of the intervening event that caused the secondary injury is the previous workplace accident – for the secondary injury to be compensable on this basis, the WCB must determine that the previous workplace accident is the dominant or primary cause of the intervening event that caused the worker's secondary injury.

The WCB's Board of Directors has established Policy 44.90.10, Permanent Impairment Rating (the "PPI Policy") to provide a method for determining a rating that represents the percentage of impairment as it relates to the whole body. The PPI Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the PPI Policy, and that whenever possible, and reasonable, impairment ratings will be established strictly in accordance with Schedule A to the PPI Policy. Section 20 of Schedule A of the PPI Policy provides a step-by-step analysis.

Schedule A to the PPI Policy provides that permanent impairment from a workplace injury is evaluated for the following deficits:

• loss of a part of the body; 

• loss of mobility of a joint(s); 

• loss of function of any organ(s) of the body identified in the Schedule; and 

• cosmetic disfigurement of the body.

The WCB has also established Policy 44.80.30.20, Post Accident Earnings – Deemed Earning Capacity, (the “Deemed Earning Capacity Policy”), which sets out the approach to determining when a worker will be deemed capable of earning an amount that the worker is not actually earning and how the deemed earning capacity will be determined. The Deemed Earning Capacity Policy also sets out the length of job search assistance for a worker based on their education level.

Worker’s Position

The worker was self-represented at the hearing and was supported by a friend. The worker made an oral submission to the panel and answered questions posed by members of the appeal panel.

The worker’s position is that they are entitled to benefits for the September 3, 2024 incident and that it is related to their 2017 workplace accident.

The worker states that their treating physician’s opinion on September 5, 2024 was that the fall on September 3, 2024 was significant and was caused by the locking of their knee, which was a consequence from their 2017 workplace accident.

With respect to the entitlement to further job search services, the worker’s position is that the amount of time provided was not a fair amount and that 28 weeks was not adequate. The worker also states that their mental health should be a factor in determining whether the number of weeks provided was appropriate.

The worker’s position regarding their PPI rating of 1.95% and the corresponding monetary award is that it was not correctly calculated, and that their knee has changed in the intervening years since the PPI examination.

Employer’s Position

The employer did not participate in the appeal.

Analysis

Issue 1: Whether or not the worker is entitled to benefits for the September 3, 2024 incident at home in relation to the October 30, 2017 workplace accident.

For the panel to accept the worker’s appeal, the panel would have to determine that the worker’s incident at home on September 3, 2024 was causally related to the injury sustained in the compensable workplace accident of October 30. 2017. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.

The worker described the injury on September 3, 2024 and identified that their knee locked, causing their fall. The worker’s evidence is that they spoke to their treating orthopedic surgeon and noted that they are being referred to another orthopedic surgeon. The worker indicated that they are awaiting an appointment with their new orthopedic surgeon.

The panel is satisfied that the worker has been complaining of ongoing knee difficulties since the workplace injury in 2017. The worker’s treating orthopedic surgeon notes in their letter of March 11, 2024 that the worker has chronic pain to their right knee, and ongoing mechanical symptoms, including locking or pseudolocking of the knee.

The panel notes that the triage document from the emergency room visit on September 3, 2024 provides that the worker reported that the “knee has been buckling and popping.” The panel has also considered that the worker is under permanent restrictions respecting their right knee and takes medication for chronic pain.

The panel finds that the worker suffered a secondary injury under the S.I. Policy and further finds based on the medical evidence that there is a causal link between the intervening event (the fall in September 2024) and the previous compensable workplace accident. The locking of the worker’s knee, as a result of their workplace accident, was the primary cause of the intervening event.

The panel is of the view that there are ongoing structural difficulties within the worker’s knee and that these were being explored by their treating health care professionals. The referral to a second orthopedic surgeon indicates that there were continuing investigations into the worker’s knee difficulties and therefore the denial by the WCB of benefits is premature in nature.

Based on the evidence before the panel, and on the standard of a balance of probabilities, the panel is satisfied that there is a relationship between the September 3, 2024 incident and the compensable injury of October 30, 2017. Therefore, the worker is entitled to benefits for the September 3, 2024 incident. The worker’s appeal of this issue is granted.

Issue 2: Whether or not the worker is entitled to further job search services beyond 28 weeks.

For the worker’s appeal to be accepted, the panel would have to determine that the worker was not provided with adequate or appropriate job search services. The panel is able to make this determination and therefore, the worker’s appeal respecting this issue is granted.

The worker indicated that they were only provided with 13 weeks of job search services with assistance from the vocational rehabilitation consultant and no assistance for the remaining 15 weeks. The worker also states that their mental health has been affected as a result of the accident and should be considered in determining the appropriate amount of job search services provided.

The panel is of the view that there were several failings as it relates to the job search services provided to the worker.

It appears that the worker was provided with the minimum length of job search assistance required for a worker with some high school education under Schedule A to the Deemed Earning Capacity Policy. The panel emphasizes that the Schedule provides the minimum amount of assistance and notes that the WCB is to review whether the minimum amount is appropriate on a case by case basis.

The worker indicated that COVID-19 was a barrier to obtaining transcripts from their out of province high schools. The WCB did not receive their transcripts and did not have confirmation of the worker’s grades or level of completion with respect to their high school education. Furthermore, the panel notes that several of the job leads sent to the worker do not appear to have been appropriate for the worker. In some instances, the worker was not qualified for the job (for example, the worker needed 2 years of experience or did not have the required qualifications) and in other instances, the job was not appropriate for the worker (for example, highly mobile positions or not within the worker’s restrictions).

The panel acknowledges that there were references on the file to the worker missing appointments or not obtaining information requested by WCB, however, the panel does not view this as detrimental to the worker’s request for assistance.

The panel also acknowledges that the worker has raised their mental health concerns as an impediment to their job search. The panel accepts that the worker presents special needs in this regard. The evidence before the panel is that the worker is on several medications, including medications for anxiety and depression. It does not appear that these circumstances and their effect on the worker’s job search abilities were taken into account by the WCB in assessing the length of job search assistance provided to the worker.

Based on the above, the panel finds that the worker is entitled to further job search services beyond 28 weeks. The panel returns the matter to the WCB for further determination as to the services provided to this worker.

Issue 3: Whether or not the worker’s permanent partial impairment rating of 1.95% and the monetary award of $1,370.00 have been correctly calculated.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker's PPI rating and monetary award have not been correctly calculated. The panel was unable to make this finding.

The panel has reviewed the notes of the WCB physiotherapy advisor and finds that the advisor measured active guided knee mobility to determine the range of motion and determined the difference in the range of motion between the worker's left and right knees. The panel is satisfied that the WCB physiotherapy advisor conducted the appropriate measurements, properly applying the criteria set out in the Policy.

The panel also reviewed the WCB physiotherapy advisor's impairment calculations based on his measurements and was unable to find any error in those calculations. The panel is therefore satisfied that the advisor's assessment with respect to loss of mobility was conducted in accordance with the process and criteria as set out in the Policy and accepts their findings and recommendation that impairment was 1.9%. The panel notes that the rating was reduced due to the worker’s major pre-existing condition to the worker’s right knee, and are in agreement with the prorating by 50% in that regard.

The PPI examination notes also indicate that photos of the worker’s scarring were taken and compared to the folio of images at the WCB. The panel is satisfied that the physiotherapy advisor determined the cosmetic impairment rating based on their review of the photos and an exercise of judgment in this regard.

The evidence before the panel does not support that any errors were made in the PPI rating or calculation of the corresponding monetary award.

The panel acknowledges that the worker has indicated that their knee has changed dramatically since the PPI assessment being reviewed here. The panel only has jurisdiction to review and consider the PPI assessment already conducted, however, a worker who has an impairment and suffers a significant deterioration of their medical condition, may apply to the board to reconsider the degree of impairment.

The panel finds that the Act, the PPI Policy and Regulation were properly applied in establishing the worker's permanent partial impairment rating and monetary award. Therefore, the panel finds that the worker’s PPI rating and monetary award are correct and as a result, the worker’s appeal on this issue is dismissed.

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 4th day of April, 2025