Decision #51/10 - Type: Workers Compensation
Preamble
The employer is appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that the employer was not entitled to cost relief as the worker did not have a pre-existing condition that affected his recovery from his compensable injury. A file review was held 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 reported that on May 12, 2009, he felt a sharp pain across his low back when he twisted to the right while lifting a 60 pound box onto a truck.
Medical information showed that the worker attended a chiropractor for treatment on May 19, 2009 and was diagnosed with a lumbosacral and sacroiliac strain.
On May 21, 2009, the worker told a WCB adjudicator that he had no pain prior to the start of his shift on May 12, 2009 but had back problems in the past. On May 26, 2009, the claim for compensation was accepted and wage loss benefits were paid to the worker commencing May 18, 2009.
On May 28, 2009, the treating chiropractor reported that the worker still had some pain and effusion but his capacity was improving.
On June 5, 2009, the treating chiropractor reported that the worker could return to work on June 8, 2009 with restrictions related to lifting and that he should have a helper for the next two weeks. File records showed that the worker returned to modified duties on June 15, 2009.
A chiropractic progress report dated July 8, 2009 indicated that the worker was still experiencing recurring stiffness after work especially with bending and twisting. Objective findings were outlined as “still some tenderness at left lumbosacral facet joint with hypertonicity of left sacrum.”
On July 24, 2009, the treating chiropractor reported that the worker still had persisting stiffness and pain and that there was no pre-existing condition that was prolonging the worker’s recovery.
On August 21, 2009, the treating chiropractor advised a WCB adjudicator that the worker would be fit to return to his regular duties by August 24, 2009.
On August 31, 2009, an employer representative outlined the position that the worker had a pre-existing condition that prolonged his recovery and therefore the employer was entitled to cost relief. In support of her position, the employer representative referred to the chiropractic progress report dated May 28, 2009 which identified that the worker had an effusion.
In a letter dated September 1, 2009, the employer was advised that all medical reports on file attributed the worker’s restrictions to his compensable injury and that there was no mention of a pre-existing condition that contributed to the worker’s disability.
In a submission to Review Office dated October 27, 2009, the employer representative noted that a July 8, 2009 medical report identified facet joint hypertrophy. The employer representative provided medical literature showing that the main cause of this condition was based on an arthritic process. She indicated that this evidence supported that the employer was entitled to cost relief. The employer representative further indicated that it was the duration of the modified duties that caused the definition of prolonged recovery and that the need for modified work was based on facet joint hypertrophy.
On November 3, 2009, a Review Officer documented that he discussed the July 8, 2009 chiropractic report with a WCB chiropractic consultant. It was determined that the July 8, 2009 report made no mention of “hypertrophy” but mentioned “hypertonicity.” Hypertonicity was in regard to muscle fibres and was not evidence of a pre-existing condition.
In a decision dated November 2, 2009, Review Office confirmed that the employer was not entitled to cost relief on the following grounds:
· the employer’s original request for cost relief brought forward the fact that medical information from May 2009 mentioned that the worker had an effusion. Review Office noted that effusion was swelling which was common in the acute phase of an injury, and would not provide any evidence regarding a pre-existing condition playing a role in the duration of the claim.
· Review Office did not feel that there was any evidence that the worker had a significant underlying pre-existing condition which played a role in the duration of the claim. It noted that the medical information provided by the employer with regard to facet hypertrophy points out that when the bony arthritic growth on the vertebrae becomes large enough, it can bulge into the spinal canal, placing pressure on the spinal cord. Review Office indicated that there was no evidence of any radicular symptoms in the worker’s presentation to his chiropractor and there was no evidence of root compression.
· the medical report of July 9, 2009 did not mention hypertrophy but rather mentioned hypertonicity. This condition was related to muscle fibres and was not evidence that could be considered as proof of a pre-existing condition.
On December 11, 2009, the employer representative filed an appeal of Review Office’s decision to the Appeal Commission and a file review was arranged.
Prior to deciding the issue under appeal, the appeal panel noted that the worker had six prior back claims with the WCB dating back to 1983. As it was felt that these claims could be considered relevant to the issue of cost relief, the employer’s representative was provided with all relevant information from the six prior back claims through the WCB’s file access branch and were asked to provide comment.
On April 29, 2010, the panel met further to discuss the case and consider a final submission from the employer’s representative dated April 23, 2010.
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
The accident employer’s interests were advanced by an employer representative. The Notice of Appeal form filed on behalf of the employer simply asks for recognition of pre-existing conditions and included no further submission. The panel assumes that the employer continues to rely upon the arguments put forward to the WCB Review Office.
In response to the additional information regarding prior WCB back claims, the employer representative noted that although there was minimal medical information gathered for the prior claims, the frequency and number of claims accepted by the WCB for the worker’s lower back would suggest that the request for cost relief is supported. Each claim was resolved and the worker returned to regular duties before the next incident occurred. Each claim involved the worker’s lower back on either the left or right side. It was submitted that the average worker does not have recurring claims to the same area of injury. The employer’s position was that the medical evidence of a pre-existing condition submitted to Review Office, along with evidence of several claims over the years to the same area of injury, indicated that a pre-existing condition was present and that the employer should be entitled to cost relief.
Analysis:
The employer requests cost relief based on the assertion that the worker has a pre-existing condition which is affecting his recovery. In order for the employer’s appeal to be successful, the panel must find that the employer qualifies for relief under section 3(a)(i) of the Cost Relief Policy, i.e. we must find that the worker’s claim was either caused or was significantly prolonged by a pre-existing condition.
In the present case, the panel is of the view that cost relief is not available to the employer under subsection 3(a)(i) of the Policy. We find that there is essentially no medical evidence to support the position that the worker had a pre-existing condition affecting his lower back which either caused the claim or significantly prolonged the worker’s recovery. None of the progress reports submitted by the treating chiropractor make reference to a pre-existing condition which may be contributing to the worker’s symptomatology. In fact, on the employer’s own medical progress report forms, in response to the question: “Are there any underlying or pre-existing conditions that may be prolonging his/her recovery or contributing to their discomfort?” the treating chiropractor indicated “no.”
The panel concurs with the analysis set out in the Review Office decision, particularly where it responds to the employer’s arguments and notes that effusion simply relates to swelling which would not provide evidence regarding a pre-existing condition, and that hypertonicity is referable to muscle fibres which again is not evidence that can be considered as any proof of a pre-existing condition.
With respect to the information regarding prior back claims, we agree with the employer’s observation that minimal medical information was gathered. Certainly, none of the medical reports in the previous files identifies a pre-existing condition. It would appear that each of the prior claims involved relatively minor injuries which resolved and permitted the worker to return to his regular duties. In the panel’s opinion, the fact of previous recurring claims to the same anatomical area is not alone sufficient to establish a pre-existing condition. As there is no evidence that any of the prior claims resulted in a permanent condition which affected the worker’s recovery on this claim, we find that the existence of multiple prior claims does not lead to a finding of a pre-existing condition.
For these reasons, the panel does not accept that the worker’s claim was either caused by or was significantly prolonged by a pre-existing condition, and we therefore are unable 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 16th day of June, 2010