The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on November 22, 1999, at the request of an advocate, acting on behalf of the employer.

Issue

Whether or not the employer is entitled to cost relief.

Decision

The employer is not entitled to cost relief.

Background

While performing the duties of a labourer on January 19, 1995, a 98 pound steel beam fell on the claimant's head. The initial diagnosis was a presumptive spinal cord injury without x-ray evidence. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

The claimant underwent a CT of the cranial cervical junction and upper cervical spine on January 23, 1995. The findings were consistent with a moderately severe degree of congenital spinal stenosis. On January 25, 1995, an MRI of the cervical spine showed degenerative changes in the joint of Luschka resulting in mild left sided foraminal stenosis as well as a very small right paracentral disc herniation at the C5-C6 level.

On June 2, 1997, and October 8, 1998, the claimant was assessed by a WCB psychiatric consultant who diagnosed an organic brain syndrome class 2 with both affective and cognitive changes related to the head injury. On January 14, 1999, a WCB impairment awards medical advisor assessed the claimant with a 31% Permanent Partial Impairment (PPI) award which took into account the organic brain syndrome and the neck/cervical region.

On April 5, 1999, an advocate for the employer requested cost relief. The advocate indicated that it appeared obvious from file documentation that the claimant's pre-existing cervical spine condition played a significant part in his lengthy recovery from the neck portion of his compensable injury. The advocate was of the view that a fracture of the C spine was ruled out after extensive radiological testing. In support of his position for cost relief, the advocate made reference to various medical reports as a basis for his request.

In a response to the advocate dated May 10, 1999, the WCB determined that cost relief was not warranted in this case. It was recognized that although the claimant had some degenerative changes in his spine, this had not played a significant part in his lengthy recovery from his compensable injury. The claimant was considered to be unemployable entirely due to the traumatic head injury he suffered at work on January 19, 1995. This opinion was confirmed by WCB's healthcare which indicated that the claimant's permanent impairment had entirely resulted due to the compensable injury.

On May 14, 1999, the advocate argued that the claimant clearly had a significant pre-existing physical condition that impacted upon the compensable injury. The advocate stated that the compensable injury, while having a component of a head injury, also consisted of permanent restrictions related to the back/neck injury (no lifting over 50 lbs.). The claimant was also given a PPI award for his back injury. In the advocate's opinion, there was no doubt that the spinal portion of the compensable injury was significant and that the pre-existing spinal condition contributed significantly to the establishment of permanent lifting restrictions as well as the award of a spinal PPI.

The advocate argued that the claim fully met the criteria for cost relief under WCB policy 31.05.10, "Cost Relief/Cost Transfers". Schedule A of the policy was noted by the advocate, "it clearly states that cost relief is to be granted in circumstances where a pre-existing condition has affected the disability duration and/or associated costs. By way of the PPI award, the pre-existing has affected the costs on this claim." The advocate outlined a number of reports on file which showed a pre-existing condition.

On August 13, 1999, WCB's Review Office determined that cost relief should not be provided and that the permanent partial impairment rating for the claimant's cervical spine injury had been properly established.

The Review Office's decision under "Reasons" made reference to WCB policy 31.05.10, Cost Relief/Cost Transfers and WCB policy 44.10.20.10, Pre-Existing Conditions. Review Office stated that the degenerative changes of the claimant's cervical spine did not add to the duration of the claim and the lengthy duration was due to other injuries suffered by the claimant. Review Office therefore was of the opinion that there was no basis for awarding cost relief under the provisions of WCB policy 31.05.10. Any loss in range of motion of the cervical spine was considered to have existed prior to the accident and was not quantifiable. As well, the pre-existing degenerative changes for his cervical spine were minor in nature. There was therefore no basis for reducing the claimant's PPI award. Review Office deemed it appropriate to note that any cost reduction which could be provided under policy 44.10.20.10 would be almost negligible compared to the overall costs of the claim.

The Review Office's decision was appealed by a different advocate, acting on behalf of the employer. The advocate acknowledged that while the claimant's head injury was a major problem, there was also no question that he suffered a back injury superimposed upon his significant pre-existing condition. Had he not suffered the head injury, the advocate stated the claimant would still be permanently unable to work in his regular duties due to his back injury, prolonged by the stenosis and disc degeneration at the same anatomical site as the injury. Both injuries were a result of the compensable accident. Both conditions contributed to his inability to return to work. A non-oral file was arranged and held on November 22, 1999.

Reasons

The issue in this appeal is whether or not the employer is entitled to cost relief. Relevant WCB Policies are 31.05.10, Cost Relief/Cost Transfers and 44.10.20.10, Pre-Existing Conditions.

There are two methods in which an employer may receive recognition with respect to costs charged to a claim file in cases involving a pre-existing condition. WCB Policy 31.05.10, Cost Relief/Cost Transfers allows the WCB to grant 50% Cost Relief where the time loss from work exceeds 12 weeks and the pre-existing condition has affected the disability duration and/or the associated costs. The second method is in relation to WCB Policy 44.10.20.10., Pre-Existing Conditions. Under this policy if a pre-existing condition is deemed to be a major factor with respect to the entitlement to a PPI the impairment award would be reduced by 50%. If the pre-existing condition is deemed to be minor then the impairment award would not be reduced.

We note in this case the claimant sustained a severe injury in January 1995 when he was struck on the head by a falling piece of metal. As a consequence of this injury the claimant has been diagnosed with an organic brain injury and has been awarded a PPI as a result of this very unfortunate accident. In addition to the PPI award relating to the organic brain injury, the claimant was also awarded a significantly smaller impairment award for neck injuries sustained at the time of the accident. The employer has contended that both the head and neck injuries of themselves would most likely have resulted in permanent disability and in light of the existence of a pre-existing congenital/degenerative condition of the claimant's cervical spine that 50% cost relief should be granted.

With respect, we disagree with the employer's argument and fully concur with the decision and supporting rationale as provided by the WCB Review Office. We are of the opinion that the pre-existing condition of the claimant's cervical spine was relatively minor and has not, on a balance of probabilities, contributed to the duration of this claim. We are of the opinion that the duration of this claim is predominantly attributable to the claimant's organic brain injury.

As stated, we are of the view that the pre-existing condition of the cervical spine was minor in nature and therefore find that there would be no indication to reduce the portion of the claimant's PPI relative to the neck injury with respect to this pre-existing condition. In this regard we reference WCB Policy 44.10.20.10, Pre-existing Conditions:

4. Assigned rating for pre-existing conditions

" when it is reasonable to do so, the assigned rating for the pre-existing condition will be based on the impairment rating schedule adopted by the WCB. However, when this is not practical, the assigned rating will be determined as follows:
1. A pre-existing condition which is deemed to be minor will be assigned a 0% rating.
2. A pre-existing condition which is deemed to be major will be assigned a rating equivalent to 50% of the total combined impairment rating."

In regard to the above we note that a CT scan of the craniocervical junction and upper cervical spine was performed January 23, 1995 shortly following the accident and revealed a moderately severe degree of congenital spinal stenosis and an MRI of the cervical spine performed January 25, 1995 revealed degenerative spurring at the C3-4 level in the Luschka joint on the left. At the time of the accident a fracture of C3 was suspected but not confirmed and subsequently the claimant was investigated for injury to the cervical spinal cord. We note a hospital discharge report dated January 26, 1995, which indicated that the claimant's diagnosis was head injury secondary to occupational injury for which the claimant was referred for a neuropsychological assessment. With respect to the cervical spine injury the report states:

" Tomograms, CT scan and flexion extension views of the spine failed to reveal any bony or musculoligamentous injury of the cervical spine. We have discontinued his cervical collar and he is not to wear this at any time in the future."

The report further indicates that " the failure to find any 'hard' neurological findings on admission bodes well for any potential spinal cord injury as a result of this incident."

In a report dated April 25, 1995 we note that a physiatrist who examined the claimant was surprised that the claimant was still wearing a collar which he felt should have been discontinued when the flexion/extension x-rays were demonstrated to be normal and he recommends that the claimant discontinue use of the collar and that active and passive therapy be instigated to wean the claimant from the collar and to improve his neck range of motion.

By mid 1995 it became evident that the claimant's continued disability related predominantly to depression and cognitive impairment which was investigated and accepted by the WCB as sequelae of the compensable head injury. In this regard we note a report form the WCB psychiatric consultant dated June 2, 1997 which indicates:

"At this time the psychiatric diagnoses are:
1. Affective Disorder - depression. In view of the lack of previous episodes of Affective Disorder and the pattern of response to treatment and the pattern of symptomatology, this can be considered to be an organic Affective Disorder secondary to the blow to the head.
2. Headaches, presumably post concussive.

   This man appears to have suffered psychiatric sequelae as a result of a compensable injury. The diagnosis category according to DSM-IV would be Organic Affective Disorder. In the PPI Rating Schedule used by WCB this would fall under Organic Brain Syndrome, as it is not a psychosis, not a neurosis and not a personality disorder but is due to trauma to the brain."

In a later report approximately four years post injury on October 8, 1998 the WCB psychiatrist further indicates:

" I would concur with Dr. [psychiatrist] that this is a man with significant impairment and that this impairment is in very large part due to the post concussive headaches which are severe and have significant effects on his cognition. Until there can be some remarkable change in his headaches this man is not employable,"

Based on the weight of the evidence, on a balance of probabilities, we find that the employer is not entitled to cost relief in this case. Therefore the employer's appeal is denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 30th day of November, 1999