The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 4, 2002, at the employer's request. The Panel discussed this appeal on December 4, 2002.

Issue

Whether or not the employer is entitled to cost relief.

Decision

The employer is not entitled to cost relief.

Decision: Unanimous

Background

During the course of his employment as a transport driver on February 4, 1998, the claimant fell from the deck of his truck and injured both of his wrists. Initial medical information revealed that the claimant fractured his left wrist and sustained a contusion to his right hand. The Workers Compensation Board (WCB) accepted responsibility for the claim and the claimant is presently in receipt of compensation benefits.

In March 2002, an advocate for the employer asked the WCB to consider cost relief in connection with the claim. In his letter of March 1, 2002, the advocate indicated the following:

• the claimant sustained a simple fracture to his left wrist in February 1998 but the cast was broken and had to be recasted on February 15th. On March 22, 1998, it was reported that the claimant took his cast off himself. In November 2001, a WCB medical advisor commented that the early removal of the cast may have had an adverse impact on the claim and its duration.
  
  
• in June 1998, a WCB medical advisor stated that recovery was prolonged and in January 2000, a WCB medical advisor reported that the normal recovery time was 4-6 months for this type of injury. The advocate noted that there were complications with respect to surgery and that 5 surgeries were performed to the non-dominant wrist which delayed assessment of permanent restrictions and that vocational rehabilitation was significantly delayed.
  
  
• in October 1998, a WCB medical advisor commented that the diagnosis was unclear and that the claimant was capable of work that just involved driving, as shifting was done with the right hand. The advocate indicated that throughout the claim, WCB medical advisors repeatedly opined that the claimant could do other work duties, that he was not totally disabled and noted that the claimant was right hand dominant. There was no evidence that any appropriate work was performed throughout the duration of the claim to mitigate the effects of the injury.
  
  
• the claimant moved to Saskatchewan early in the claim which caused delays in timely medical diagnosis and treatment due to the proximity to Manitoba health care. There was also trouble with physiotherapy treatment as outlined in a January 4, 2000 memo due to distances created by the move out of Manitoba.

On March 6, 2002, a WCB case manager wrote to the advocate indicating that consideration was given to the WCB's policy on cost relief. After taking into consideration the points that were outlined by the advocate, the case manager concluded that the decisions made by the WCB throughout the claim were reasonable given the information on hand at the point in time of the decision making process. It was therefore determined that no overpayment had been caused due to administrative error by the WCB and that no cost relief could be granted to the employer.

File records showed that the employer submitted medical information from an independent orthopaedic specialist dated May 1, 2002 who had reviewed the claim in connection with WCB policies 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, and 31.05.10, Cost Relief/Cost Transfers. The specialist provided the following comments after his review of the claim:

"In summary, this patient had a Colles' fracture of his left wrist and several surgical procedures which have not improved the function of this left wrist and hand. He thus has a partial permanent impairment in his left wrist.

The patient's left Colles' fracture did not require any manipulation or surgery in the early post-trauma period and this in my opinion implies that the fractures would heal satisfactorily with cast immobilization for approximately six or eight weeks. The cartilage abrasions of the wrist bones are probably a pre-existing condition in a 40-year-old truck driver who did heavy work. This patient would have been in a better position today if he had had only cast treatment for his Colles' fracture and had no other subsequent surgeries to the wrist.

In my opinion, the Workers' Compensation Board was not prudent in giving permission for multiple surgeries which are not usually required for the type of injury that this patient sustained to his wrist. In my opinion, this patient meets the criteria in the Workers' Compensation Board Policy #44.10.80.40 and #31.05.10 for cost relief."

Based on the above commentary, the advocate was of the opinion that a further injury arose out of a situation over which the WCB exercised direct specific control and that the further injury arose out of the delivery of treatment for the original compensable injury. It was therefore his position that the employer was entitled to cost relief.

In a decision dated August 2, 2002, Review Office opined that the employer's advocate had misinterpreted the policy on further 'injury' subsequent to a compensable injury (44.10.80.40).

Review Office noted that both the independent orthopaedic specialist and the advocate were attempting to take a position that the further 'injury' was any and all of the five surgical procedures. Review Office felt, however, that an example of further 'injury' would be where a nerve or vein was nicked during a WCB authorized surgical procedure causing negative ramifications that would not normally be expected of the surgical procedure. In this particular case, the surgeries were brought forth to the WCB by specialists with the belief that they truly would assist in the correction of the wrist problems the claimant was having. At the time the surgeries were being planned, it certainly could not be known that an optimal result would not have been obtained. Review Office stated that it was never the intent of the aforementioned policies to call a surgical procedure which did not ultimately obtain its full goal an 'injury'. Review Office therefore concluded that the circumstances of this case did not meet the criteria outlined in the two policies brought forth by the employer and the decision to deny cost relief was confirmed.

On September 23, 2002, the employer's advocate appealed the Review Office's decision and an oral hearing was convened.

Reasons

This case involves an appeal by the employer, requesting cost relief in respect of an accident involving one of its employees.

The worker had suffered injuries to both wrists, including a fracture of his left wrist. The fracture had necessitated a number of surgeries.

It is the contention of the employer that these surgeries constituted further injuries and that, according to board policy, the employer is entitled to cost relief.

For this appeal to be successful, the Panel would have to determine that subsequent surgeries did constitute further injury as defined in the relevant policy. We were not able to make that determination.

In coming to our decision, we conducted a thorough review of the claim file, as well as holding an oral hearing at which we heard testimony and argument from the employer and his representative, as well as a medical expert.

On February 4, 1998, the claimant in this case suffered a fracture and other injuries to his left wrist, which have necessitated a number of operations and have prolonged his recovery. This has impacted negatively on the experience rating of the employer.

In this appeal, the employer has requested cost relief, on the basis that he should not be responsible for the very lengthy recovery period. He argues that normal recovery should be only a few weeks, perhaps 6 to 8. It is now over four years in this case.

In his presentation to the Panel, the employer's advocate argued, supported by the medical expert, that the surgeries constituted new and discrete injuries, which should not be charged to the employer's experience rating.

The appellant relies on Board Policies 31.05.10, Cost Relief/Cost Transfers, and 44.10.80.40, Further Injuries Subsequent to a Compensable Injury. Schedule C of the Cost Relief policy reads as follows:

Where a worker is receiving benefits and the duration of benefits is extended due to a further separate injury which is compensable under the Board's policy on "Further Injuries Subsequent to a Compensable Injury", the additional costs attributable to the further injury may be eligible for cost relief in the following circumstances:

1. where the further injury arises out of a situation over which the WCB exercises direct specific control; or
   
   
2. where the further injury arises out of the delivery of treatment for the original compensable injury.

In his testimony, the medical expert, a specialist in orthopaedic surgery, made the following arguments:

• The claimant suffered a Colles fracture, a common fracture to the wrist, which usually heals within 6 to 8 weeks. Typical treatment is casting.
  
  
• In this case, the claimant was casted. An x-ray taken on March 31, 1998 showed the fracture to be healed.
  
  
• It was his opinion that the subsequent surgeries, which including the initial arthrogram, number six, were not necessary.
  
  
• It was also his position that each of these, with the possible exception of the initial arthrogram, constituted new injuries, unrelated to the compensable injury. These new injuries would cause trauma prolonging the recovery.
  
  
• He stated that he thought that these 'new' injuries met the test of further injuries as set out in the above-noted policies.

We note that, while the fracture healed in about eight weeks, the claimant continued to suffer pains and disability in his wrist. The arthrogram in September 1998 showed an additional injury, a small tear of the scaphoid lunate interosseous ligament. This finding was considered to be related to the original workplace accident. The treating specialist recommended surgery, which was duly authorized by the board.

To date, four additional surgeries have followed.

While there may be a legitimate difference of medical opinion between the surgeon who appeared before us and the one who performed the operations, we are of the view that the board's authorization of surgery was not an unreasonable decision. Once the surgery had been authorized, it became incumbent to accept any sequelae of that decision.

We find the argument put forward by the employer's advocate to be a novel one. However, we are not persuaded by it. We would agree with the decision of the Review Office, which noted that the board policy on further injuries did not contemplate that surgeries authorized by the board could or would be construed as being injuries.

This leads us to the conclusion that the employer is not entitled to cost relief.

Accordingly, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of December, 2002