Decision #78/99 - Type: Workers Compensation
Preamble
An Appeal Panel review was held on April 7, 1999, at the request of the employer.
Issue
Whether the employer is entitled to 100% cost relief.
Decision
That the employer is not entitled to 100% cost relief.
Background
The claimant filed a workers compensation claim for a myocardial infarction which he related to his employment activities as a owner/operator truck driver on February 25, 1998. The claim was accepted as Workers Compensation Board (WCB) responsibility and benefits were paid accordingly. It was noted that the claimant had a prior compensable claim for a myocardial infarction which occurred on December 3, 1988.
On November 10, 1998, the Review Office acknowledged receipt of an appeal from the employer which requested reconsideration of the adjudicator's decision to accept the claim. The employer was of the position that the WCB failed to establish that the myocardial infarction suffered by the claimant on February 25, 1998, met the requirements for a compensable illness as it had been determined that cardiovascular disease was present.
In a decision dated November 13, 1998, the Review Office confirmed that the claim was acceptable and that the claimant was entitled to wage loss benefits resulting from the myocardial infarction. It also determined that the employer would receive cost relief for 50% of the entire costs of the claim.
The Review Office commented that the employer questioned the existence of a pre-existing non-compensable or underlying cardiovascular disease as a precipitating cause of the myocardial infarction and therefore the event of February 25, 1998 should not be compensable. In this regard, Review Office considered policy 44.10.10.60 dealing with myocardial infarction and determined that an event or trigger factor did occur, which arose both in the course of and arising out of his employment which led to the myocardial infarction. The Review Office noted that the claimant was unloading pallets from his truck when he experienced pain across his back and shoulders, and experienced difficulty breathing. The claimant, a day later, still had the pain and shortness of breath when he was backing his trailer to a dock to unload product. According to Review Office this would be considered the trigger factor or event that led to the myocardial infarction. Review Office stated it had not been shown that the claimant had an underlying cardiovascular disease that was sufficient to spontaneously rise to the myocardial infarction.
The Review Office further stated that in considering the claim it was necessary to refer to WCB policy 31.05.10, dealing with cost relief/cost transfer. "Since the claimant had a previous myocardial infarction December 3, 1988, and this may be an underlying factor in the cause of the event of February 25, 1998, Review Office believe this policy provided sufficient weight to relieve the employer of 50% of the entire cost of the claim."
On December 15, 1998, the employer appealed the Review Office's decision and requested 100% cost relief. The Appeal Commission's Registrar referred the file back to Review Office to revisit the issue with regard to cost relief and to determine whether the employer was correct in its understanding, that 100% cost relief should be granted.
In a decision dated January 22, 1999, the Review Office made reference to policy 31.05.10 which dealt with the issue of cost relief. Review Office pointed out that the maximum percentage permissible by policy 31.05.10 is 50% of the entire costs of the claim which was the amount provided for by Review Office on November 13, 1998. Policy states "for other claims involving a pre-existing condition where time loss exceeds 12 weeks, the employer will receive cost relief for 50% of the entire costs of the claim. The accident employer will not be eligible for cost relief when the pre-existing condition relates to a previous accident with the same employer."
The accident employer disagreed with the Review Office's decision and a non-oral file review was conducted by an Appeal Panel on April 7, 1999. At this time the Appeal Panel took into consideration all file documentation including a submission from the employer dated March 23, 1999.
Reasons
The WCB has enacted policy to deal with issues such as Pre-existing conditions and cost relief. Board policy 31.05.10 entitled cost relief/cost transfers addresses this issue and states:
- PRE-EXISTING CONDITIONS
- Where the prior condition is determined to be the primary cause of the accident, for example, epilepsy.
- Where the wearing of an artificial appliance is determined to be the primary cause of the accident.
For claims where a pre-existing condition has affected the disability duration and/or associated costs, the WCB may provide cost relief.
The following pre-existing conditions will result in 100% cost relief to the employer:
For other claims involving a pre-existing condition where time loss exceeds 12 weeks, the employer will receive cost relief for 50% of the entire costs of the claim.
The accident employer will not be eligible for cost relief when the pre-existing condition relates to a previous accident with the same employer.
We note that the claimant was unloading pallets on February 24, 1998, from his truck when he experienced pain in his back and shoulders and difficulty breathing which gradually became more severe. A day later on February 25, 1998, the claimant still had the pain and shortness of breath. An acute myocardial infarction was later diagnosed in hospital.
In reviewing the evidence we note the claimant did have a pre-existing myocardial condition. However, we find on a balance of probabilities, that there was a triggering event at the work place which we find was the primary cause of the accident. Therefore, the policy provisions allowing for 100% cost relief do not apply.
In this case, the WCB accepted responsibility for this claim and awarded the employer 50% cost relief due to the presence of the aforementioned pre-existing condition. We find that the awarding of 50% cost relief was done in accordance with the provisions of policy 31.05.10. Although the employer has asked for 100% cost relief as they consider the claim should never have been accepted due to the fact that the claimant had a pre-existing heart condition, the above noted policy excerpt clearly outlines when and why 100% cost relief may be granted. This claim does not meet these criteria and therefore, the appeal is denied.
Panel Members
P. McCullough, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
P. McCullough - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 25th day of May, 1999