Decision #35/10 - Type: Workers Compensation
Preamble
The employer is appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that it was not entitled to cost relief on the basis that there was no pre-existing condition affecting the worker’s recovery. A file review was held on March 17, 2010 to consider the matter.Issue
Whether or not the employer is entitled to cost relief.Decision
That the employer is not entitled to cost relief.Decision: Unanimous
Background
The worker filed a claim with the WCB for injuries he sustained to his upper back and neck on October 11, 2007 during the course of his employment as a blade processor. The worker’s claim for compensation was accepted and benefits were paid accordingly.
On January 13, 2009, an advocate acting on the employer’s behalf requested that the worker’s file be reviewed in relation to his overall entitlement to compensation benefits and for cost relief. The advocate referred to medical reports on file which indicated that the worker was being treated for fibromyalgia and low back pain whereas the original claim was for upper back and neck pain. It was felt that the worker may have a pre-existing condition that was delaying his recovery.
In a response to the advocate dated January 14, 2009, the WCB case manager noted that the worker’s claim had been accepted for an injury to his upper left side of his back. She acknowledged that medical reports have included information about other areas of concern or illness and that the WCB had not accepted responsibility for these conditions nor had the worker been paid benefits for these conditions. The case manager indicated that the file would be referred to the WCB’s healthcare department to comment on whether there was a pre-existing condition that may have had an impact on the duration of the claim.
In a letter dated January 26, 2009, the WCB case manager outlined the position that the employer was not entitled to cost relief as it was the opinion of a WCB healthcare consultant that there was no information to support that the worker had a pre-existing condition that impacted the duration of his claim. This decision was again confirmed on February 9, 2009. On February 18, 2009, the employer appealed the decision to Review Office.
In a decision dated February 26, 2009, Review Office stated that WCB policy 31.05.10, Cost Relief/Cost Transfers, provided guidelines for the implementation of cost relief. It stated that the worker did not have a pre-existing condition as characterized by the WCB and as such there was no basis to provide cost relief to the employer. On August 18, 2009, the employer appealed Review Office’s decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
WCB Policy 31.05.10 Cost Relief/Cost Transfers (the “Policy”) describes certain specific circumstances when a claim cost may be transferred from an accident employer to a shared cost pool. This process is called “cost relief”. Subsection 3(a)(i) of the Policy provides that cost relief may be available to eligible employers: “Where the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition.”
Employer’s Position
In the Appeal of Claims Decision form submitted by the employer advocate, the employer requested cost relief. The advocate noted that the claim was accepted for upper back, yet the worker received treatment for his lower back. Further, medical reports from March, 2008 referred to fibromyalgia and it was submitted that the presence of low back complaints and fibromyalgia would be factors which would have affected the worker’s recovery and contributed to his very long recovery period.
Analysis:
The issue before the panel is whether or not the employer is entitled to cost relief. In order for the employer’s appeal to be successful, the panel must find that the worker’s claim was either caused by or was significantly prolonged by a pre-existing condition. On a balance of probabilities, we are not able to make that finding.
In October, 2008, the WCB medical advisor was asked to review the file and provide her opinion as to whether or not there was any evidence of a pre-existing condition that was significantly delaying recovery. By memo dated October 16, 2008, the medical advisor advised as follows:
There is no evidence of a pre-existing condition that has significantly delayed recovery. Some imaging studies have been done but failed to show any significant pre-x. He has had a couple of other claims for this same area, but they resolved quickly with no ongoing effects.
By note dated January 26, 2009, the WCB medical advisor reaffirmed her opinion that there was no evidence of a pre-existing condition which impacted the duration of the claim.
The panel acknowledges that the WCB file contains references to other medical conditions which afflicted the worker during the period of the claim. The existence of these conditions, however, in and of themselves, do not give rise to cost relief. The adjudicator’s letter dated January 14, 2009 advised the employer that the WCB did not accept responsibility for these other areas of concern or illness, nor did the WCB issue benefits based on them. There is simply no direct evidence to support that these other medical conditions either caused or significantly prolonged the claim.
Based on the foregoing, the panel finds that the worker’s claim was neither caused by nor significantly prolonged by a pre-existing condition, and we therefore decline to grant cost relief to the employer pursuant to subsection 3(a)(i) of the Policy. The employer’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 27th day of April, 2010