The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on May 31, 2001, at the request of the employer.

Issue

Whether or not the employer is entitled to cost relief.

Decision

That the employer is not entitled to cost relief.

Background

While performing the duties of a furniture mover on July 31, 2000, the claimant picked up a karaoke machine and felt a pull in her lower back. On August 1, 2000, the attending physician diagnosed the claimant with a lower back strain. "Overweight" was indicated as the pre-existing condition that was prolonging recovery. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

On August 10, 2000, x-rays of the lumbosacral spine showed that lumbar lordosis and disc spaces were well maintained. The pedicles and vertebral bodies were intact. No fracture or dislocation was seen and the sacroiliac joints were unremarkable.

On August 22, 2000, a referral was made for the claimant to attend physiotherapy treatments. The referral form indicated that the claimant strained her lower back by lifting and that she had pain radiating to the left buttock.

The claimant underwent lumbar spine x-rays on October 2, 2000. There was slight narrowing of the L4-L5 disc space. No other abnormality was identified.

In October 2000, a WCB physiotherapy consultant reviewed the case. She noted that the claimant was responding slowly to treatment and that there should not be any significant deconditioning after two month's post injury. A call-in examination at the WCB's offices was recommended in order to assess the claimant's current status and physiotherapy requirements. On October 6, 2000, a WCB medical advisor indicated that the claimant would be capable of performing modified duties and restrictions were outlined.

A CT scan of the lumbar spine was taken on November 1, 2000. The results of the scan were as follows: "Accentuated normal lordosis associated with some mild facet arthropathy at L4-L5. There is also mild diffuse posterior disc bulging at L4-L5. A small focal central bulge is also present at L5-S1. This appears to be an incidental finding as no symptoms are referable to the S1 nerve roots."

On December 15, 2000 a WCB medical advisor reviewed the case at the request of primary adjudication. The medical advisor was asked to provide his opinion as to whether or not there was any evidence of a pre-existing condition and if so, was it contributing to the claimant's disability. The medical advisor responded that there was mild facet arthropathy at L4-L5 but that it was unlikely contributing to the claimant's disability.

In a letter dated December 18, 2000, the employer was advised the case had been reviewed by a WCB medical advisor, who was of the opinion that there was evidence of a pre-existing condition, however it was unlikely contributing to the claimant's time loss from work. It was determined, therefore, that cost relief did not apply to this claim. On February 21, 2001, an advocate for the employer appealed this decision to Review Office.

On March 2, 2001, Review Office indicated that a review of all file evidence had been undertaken. Review Office was unable to reach a conclusion that there was a significant pre-existing condition playing a role in the duration of the claim and therefore could not recommend implementation of cost relief. On April 9, 2001, the employer's advocate appealed Review Office's decision and a non-oral file review was arranged.

Reasons

The Workers Compensation Act of Manitoba (the Act) provides for cost relief in a number of circumstances. In addition, the Act creates a fund to share these pooled costs among the employers. Pursuant to the provisions of the Act, the Board of Directors of the WCB enacted a specific policy (31.05.10), which outlines the circumstances when cost relief can be provided to eligible employers. The portion of this policy that is most relevant to the case at hand states, in part, as follows: "Cost relief is available to eligible employers in the following circumstances: (i) Where the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition."

The claimant underwent a CT scan of her lower spine on November 1st, 2000. The results of this procedure revealed at the L4-L5 level: "mild diffuse posterior disc bulging. No significant involvement of the adjacent nerve roots or dural sac is suspected. Bone windows demonstrate some facet arthropathy at this level." A WCB medical advisor was asked to review the CT scan report and to provide a medical opinion clarifying several questions, one of which was: "Is there any evidence of a pre-existing condition? If yes, has it been contributing to [the claimant's] disability?" The medical consultant responded by saying it was unlikely that the mild facet arthropathy at L4-5 would be a contributing factor.

We find based on the weight of evidence that the claimant's compensable injury was, on a balance of probabilities, neither caused by nor significantly prolonged by her pre-existing condition. As such, the employer does not qualify for cost relief in accordance with the WCB's policy. Therefore, the employer's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of July, 2001