The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on May 10, 2006, at the employer's request. The worker appeared and provided evidence. He was represented by a union representative. The employer also appeared and presented its submissions.

The issue for the appeal panel was initially "Whether or not responsibility should be accepted for the worker's liver failure and transplant". At the hearing, the parties advised the panel that the accident employer also wished to appeal a prior Review Office decision dated January 17, 2006 with respect to cost relief.

Section 11 of Regulation 279/91 to The Workers Compensation Act (hereafter the "Act") provides that an additional issue which has not been identified by the Registrar of the Appeal Commission may be decided by the appeal panel, if so directed by the Chief Appeal Commissioner or his delegate. At the hearing, the Presiding Officer and acting Chief Appeal Commissioner directed the appeal panel to hear the additional issue related to cost relief. Both the worker and the accident employer agreed to this additional issue being heard at the hearing.

Issue

Issue 1: Whether or not responsibility should be accepted for the worker's liver failure and transplant;

Issue 2: Whether or not the employer is entitled to 100 percent cost relief.

Decision

Issue 1: That responsibility should be accepted for the worker's liver failure and transplant;

Issue 2: That the employer is not entitled to 100 percent cost relief.

Decision: Unanimous

Background

Reasons

Background
On April 25, 2003, at the age of 34, the worker suffered a compensable L4 disc protrusion and an L5-S1 disc herniation with S1 nerve root involvement. The worker underwent a course of medical treatment and attempted a gradual return to work which was not successful. He continued to suffer back pain which was medicated, in particular, with Tylenol at a dose of approximately 6 tablets per day.

In November, 2003, the worker was found to have elevated prolactin levels. He was referred to an internal medicine specialist who noted that the worker's liver function tests continued to be increasingly abnormal. On February 14, 2004 he was admitted to the hospital. An abdominal sonogram with Doppler done on February 16, 2004 revealed that the worker was suffering from cirrhosis of the liver. On February 19, 2004 he underwent an emergency liver transplant.

The cause of the liver failure was investigated:

• Medical consultant notes dated February 15, 2004 indicate that the worker was a heavy binge drinker of alcohol (24 to 40 beers per day) between the ages of 12 and 23. Alcohol intake had decreased (approximately 18 beers over the week-end) between the ages of 23 and 33 and stopped as of November, 2003. The worker had also been taking 'a lot' of Tylenol for approximately two years;
  
  
• A liver biopsy done on February 18, 2004 suggests that the liver failure was due to a drug induced injury or an autoimmune process;
  
  
• The February 26, 2004 pathology report indicates that the appearance of the liver was not suggestive of an autoimmune disease;
  
  
• A July 14, 2004 memorandum by an internal medicine consultant to the WCB suggests that the liver failure was due to chronic Tylenol use which the liver was not able to properly detoxify given its compromised state due to alcohol ingestion;
  
  
• An August 16, 2004 memorandum from the WCB case manager indicates that the worker stated he had not used any alcohol since August, 2003 and never drank when using Tylenol;
  
  
• An October 20, 2004 memorandum from a WCB medial advisor records a conversation with a pathologist. It states that the liver failure was most likely due to a combination of excess alcohol and Tylenol use;
  
  
• A November 22, 2004 medical report from the pathologist states as follows:

"The histomorphology does not suggest a specific etiology for the submassive hepatic necrosis, although the lack of plasma cells rules against autoimmune disease. There is no evidence of an ethanol-related steatohepatitis. There is no evidence of hemochromatosis, alpha 1 antitrypsin deficiency disease or Wilson Disease. The finding of evolving fibrosis/cirrhosis in the explant liver is consistent with a subacute to chronic history, a finding supported by the detection of abnormal liver enzymes and hepatic dysfunction in November of 2003."

WCB accepted responsibility for the liver transplant on December 21, 2004 on the basis that the worker's liver failure occurred due to the cumulative effect of Tylenol use and a pre-existing condition of former excessive alcohol use. Given the pre-existing condition, the accident employer was awarded 50% cost relief.

The accident employer appealed both decisions to Review Office, which upheld them in two decisions dated May 30, 2005 and January 17, 2006, respectively. It is these two decisions that the accident employer appeals.

Employer's Position
The employer contends that the worker's liver failure is unrelated to his April 25, 2003 workplace accident. It takes the position that Tylenol use with a healthy liver is safe. The worker's liver failure is therefore predominantly due to factors which are not related to the workplace accident and are therefore coincidental to it.

It therefore also contends that it is entitled to 100% cost relief. In support of its position, it relies on WCB Policy 44.10.20.10, 44.10.80 and Schedule C to Policy 31.05.01, the interpretation of which are subject to subsection 60(4) of the Act.

Worker's Position
The worker says that his liver failure was due to Tylenol use necessitated by his workplace accident, together with a pre-existing compromised liver as a result of prior alcohol use.

He also says that the accident employer is only entitled to 50% cost relief in accordance with WCB policy.

Analysis
Issue 1: Whether or not responsibility should be accepted for the worker's liver failure and transplant

At the hearing, the employer stated that the main issue for appeal is the issue of cost relief. That said, it was not abandoning its appeal and was relying on prior written submissions to the Appeal Commission.

In reviewing these submissions, we understand the employer's position on this issue as follows: responsibility should not be accepted for the worker's liver failure and transplant as Tylenol use with a healthy liver is safe. The worker's liver failure was therefore predominantly caused by his alcohol use which is not related to the compensable injury.

We do not agree with this position.

The legal test for causation under the Act and Policy 44.10.20.10 is the "balance of probabilities". According to this Policy, a worker is entitled to full compensation where his injury is caused "in part" by a pre-existing condition, and "in part" by the compensable injury. There is no need that the compensable injury be the "dominant" or "predominant" cause. All that is required is that the compensable injury aggravate or enhance the worker's pre-existing condition. An enhancement occurs when the compensable injury makes necessary surgery on a pre-existing condition.

In the present case, the evidence is that the worker required surgery, in this case, a liver transplant. Although there is no medical report which categorically states the cause of the worker's liver failure and requirement of surgery, there is evidence that the worker's liver failure was most likely caused by a combination of Tylenol use and long term alcohol consumption.

In these circumstances, and weighing the evidence, we find, on a balance of probabilities, that the worker's pre-existing condition was enhanced by the consumption of Tylenol for pain relief due to his compensable injury. We therefore agree with the Review Office decision of May 30, 2005 and find that responsibility should be accepted for the worker's liver failure and transplant.

The employer's appeal is therefore denied on this issue.

Issue 2: Whether or not the employer is entitled to 100 percent cost relief

The accident employer submits that in determining its eligibility for cost relief, the appeal panel should consider WCB Policy 44.10.20.10, 44.10.80 and Schedule C to Policy 31.05.01. It further states that all Policy interpretations are subject to subsection 60(4) of the Act that provides that the decision of the WCB shall always be given upon the real merits and justice of the case.

In reviewing these Policies and subsection 60(4) of the Act, we do not find that they are applicable to this appeal.

Policy 44.10.20.10 deals with pre-existing conditions. While it states that full responsibility will be accepted for a worker's injury that is caused in part by a pre-existing condition, this cannot be read as meaning that the WCB will bear sole financial responsibility for injuries caused in part by pre-existing conditions instead of the employer. That is not the financial system of the WCB or the nature of the legislation system for workers compensation. The WCB, in taking full responsibility for an accident, acts on behalf of the employer in that regard. The employer is not relieved of any responsibility for the claim, and in fact, will see changes in its WCB premiums based on its injury claims history with the WCB.

Policy 44.10.80 deals with injury subsequent to the workplace accident. Only separate acts, which would be considered to be "intervening" acts are covered by this Policy. It does not cover a progression of the initial workplace injury, such as what occurred in the worker's case, where certain authorized medical treatments led to other directly related medical problems.

Schedule C to Policy 31.05.10 deals with a similar situation to that covered by Policy 44.10.80. For that reason, it also does not apply here.

Finally, subsection 60(4) of the Act is a section dealing with legal precedent. Its purpose is to state that the WCB is not bound by precedent. The determination of each case is to be made based on the facts of that specific case. That said the WCB, as this panel, is bound by the provisions of the Act, the regulations and the policies made by the WCB Board of Directors.

The relevant Policy, in our opinion, is WCB Policy 31.05.10 and Schedule A thereto, which provide as follows:

"3. a) 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 cost relief criteria and method of cost allocation are described in Schedule A."

Schedule A:

"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:

• 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 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."

As stated above, the worker's liver failure was due to a combination of a pre-existing condition and Tylenol use as a result of his April 25, 2003 workplace accident. In these circumstances, we agree with the Review Office decision of January 17, 2006 and find that WCB Policy 31.05.10 is clear that the accident employer is only entitled to 50% cost relief.

Accordingly, the accident employer's appeal is dismissed on this issue.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of June, 2006