The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations and policies of the Board of Directors of the WCB.

Although this appeal deals with the employer’s request for cost relief, the issue of cost relief does not apply unless there is an acceptable claim. In this case, the worker’s claim has been accepted and the worker’s pre-existing condition acknowledged.

WCB Policy 31.05.10, Cost Relief/Cost Transfers outlines the circumstances under which cost relief is provided to employers. Subsection 3 (a) of the policy provides:

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 of the policy deals with pre-existing conditions and provides:

PRE-EXISTING CONDITIONS

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.

Cost relief for pre-existing conditions will be charged to the Cost Apportionment Fund and allocated to the class of the accident employer.

Employer’s Position

Along with an Appeal of Claims Decision form the employer’s representative submitted a copy of a letter dated March 6, 2007. The representative outlined the basis for the employer’s request for cost relief. The representative submitted:

“ 1. The worker has stated that his back had been sore for about two weeks prior to the DOA. He has no recollection of any specific event, but has speculated that the cause was moving carts. Even so, this is part of his normal duties. He has been doing this type of work since 2001, and it can safely be said that he (and his back), has had time to become accustomed to this and the other demands of his job.

2. The worker had been received (sic) treatments for a sore back prior to this event. He has reported to his employer that he had a back massage performed on the day before the DOA.

3. The worker told the WCB on October 30, 2006 that he could not recall exactly when the back pain occurred – as he was bending down to retrieve a chain, or as he was pulling on the chain. The worker told his employer when he reported the increased back pain that in order to retrieve the chain, he bent at the knees (rather than simply bending over), and it was while doing this that he experienced the severe back pain. He was then assisted in moving the chain/dock plate by the store manager. Please note the attached copy of an “Express Injury Report” verifying these details.

Based on the foregoing, it is our opinion that this claim qualifies for 100% cost relief, because the primary cause of the injury was the pre-existing condition. The worker has confirmed that his back was sore prior to the reported event, and he cannot be sure what had caused the pain. He received at least one massage treatment prior to the DOA, and it is likely that he actually had more than one.

At the time the severe back pain occurred, the worker had bent at the knees as he was trying to get hold of a chain to release a dock plate. The specific mention of him bending at the knees is significant, we believe, because it is further evidence that the worker was already experiencing some back discomfort and was trying to avoid making it worse.

At the time the severe pain occurred, the worker was not actually performing any work – he was not doing any lifting or twisting. He was bending down in the prescribed manner, as opposed to the unsafe way that most of us would, and then could not complete the intended action.

The workers (sic) actions at the time the severe pain occurred are actions that are performed by the general population countless times during a day, and are not confined to the workplace. They are also not the type of action that would reasonably be expected to result in disabling back pain, in an otherwise healthy person.

A CT scan in 2005 showed a disc protrusion at L1-2. This was an incidental finding on an abdominal scan. An MRI in 2006 showed disc protrusions at every lumbar level. It is unlikely, in our opinion, that all of these occurred in the intervening 16 months. It is much more likely that some or all of these were present in 2005, but the CT scan was not of that part of the body.”

Analysis

The issue before the panel is whether the employer is entitled to 100% cost relief. For the appeal to be successful, the panel must find, under WCB Policy 31.05.10, that the pre-existing condition was the primary cause of the worker’s accident. The panel was not able to make this determination and as a result, the employer is not entitled to 100% cost relief.

The worker’s evidence, in his report to the WCB, is that he was bending down to pull the ring on the dock to release it and felt a sharp pain. The employer states that the worker reported that he bent down to pull on the chain on the dock plate, reached for the chain and felt a sharp pain in his lower back.