The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission is bound by The Workers Compensation Act (the Act) and the policies of the WCB’s Board of Directors. The Act provides for cost relief/cost transfer in a number of circumstances. This case deals with cost relief in the case of a worker with a pre-existing condition. Cost relief, in such cases, is provided pursuant to subsection 81(1) of the Act and WCB Policy 31.05.10.

Subsection 3(a) of WCB Policy 31.05.10 provides that:

“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 provides, in part, that:

“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.”

Employer’s Position

The employer’s representative provided a written submission.

Regarding the existence of a pre-existing condition the submission notes that:

• an MRI report completed on December 28, 2005 found evidence of AC arthrosis, a degenerative condition which “cannot be related to the compensable incident”;
• the worker has a type II acromion which is considered a pre-existing condition which increases the likelihood of impingement in the shoulder;
• the operative report noted that the rotator cuff had an “overall thin appearance” and the presence of delamination which are pre-existing conditions which were aggravated by the compensable injury.

The employer representative advised that as result of the denial of cost relief, the WCB’s refusal to acknowledge the presence of the pre-existing conditions and the lack of a medical review, the employer obtained a report from an occupational medicine specialist. The occupational medicine specialist opined that the worker’s pre-existing condition contributed to the supraspinatous tear. He postulated that in the absence of the pre-existing condition the most likely injury would have been a rotator cuff strain which would have resolved within four weeks. He opined that the pre-existing condition contributed to the need for surgery and that it prolonged the worker’s recovery. He stated that if not for the abnormal shoulder anatomy the tear would not have occurred.

The employer’s representative relied upon the specialist’s report in support of its position that cost relief should be granted.

The employer representative submitted that the worker’s pre-existing condition, in combination with the mechanism of injury, resulted in a more serious injury, for which surgery was required and recovery was protracted well beyond what would be expected in a person with a normal shoulder. It submitted that the criterion for cost relief was met and should be applied to this case.

Analysis

The issue before the panel is whether the employer is entitled to cost relief. As noted previously, WCB Policy 31.05.10 is applicable. For the appeal to be successful the panel must find that the pre-existing condition was the primary cause of the accident or significantly prolonged the duration of the claim. The panel was not able to make either of these findings.

The first basis upon which cost relief can be provided is where the pre-existing condition was the primary cause of the injury. In such a case 100% cost relief may be provided. The panel notes that the employer did not argue this position directly but did argue that there would not have been a tear and resulting surgery if there had not been a pre-existing condition. The panel finds that the evidence does not support a finding that the pre-existing condition was the primary cause of the accident. The evidence is clear that the accident was caused by the jamming of material while the worker was operating a table saw.

The second basis upon which cost relief can be provided is where the pre-existing condition has significantly prolonged the injury or significantly affected duration of the claim. In such a case, 50% cost relief may be provided. The panel finds that the pre-existing condition did not significantly prolong the injury. The panel notes that surgery was performed on April 24, 2006 and that the surgeon reports the worker’s post operative course was complicated by arthrofibrosis. The evidence does not specifically relate this complication to the pre-existing condition. The panel also notes that that the WCB medical advisor commented that normal recovery is in the 6 to 9 month range with a possible graduated return to work in October 2006.