Decision #58/10 - Type: Workers Compensation

Preamble

This appeal deals with an issue brought forward by the employer’s advocate concerning the decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that the claim did not meet the requirements of WCB Policy 31.05.10, Cost Relief/Cost Transfers (“the Policy”) The advocate argued that the worker’s inability to get back to gainful employment was caused, at least in part, by a pre-existing condition. On May 12, 2010, 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

On February 28, 2007, the worker landed awkwardly onto his left ankle/leg when he slipped while climbing down from a six foot scaffold. The claim for compensation was accepted based on left ankle and left lower leg fractures. The WCB also accepted responsibility for the worker’s secondary soft tissue low back discomfort related to altered gait and length of time away from the workplace. File records also show that the worker had five prior compensable injuries, four of which were for the low back. The worker had permanent restrictions related to his left ankle as of July 2009.

At the request of primary adjudication, a WCB chiropractic consultant examined the worker’s low back on August 11, 2009 as the accident employer was offering the worker light duties on a long term basis. Following the assessment, the chiropractic consultant outlined his opinion that the worker had non-radicular low back pain. He noted that the worker had pre-existing degenerative changes in his lumbar spine. It was the chiropractor’s opinion that the aggravation/injury of the left ankle and subsequent prolonged inactivity and altered gait were major contributors to the worker’s ongoing back discomfort. The consultant further noted that the worker had altered gait as a result of his ankle injury and there was also a weakness of a variety of muscles of the leg and gluteal region, which in all probability related to inactivity. Restrictions for the low back were outlined. The consultant opined that the worker would not be able to function in a work environment given the restrictions for the left ankle combined with his low back issues.

On August 19, 2009, a WCB case manager met with the accident employer to discuss the worker’s restrictions. The case manager noted that based on the call in examination results and the worker’s ankle and back restrictions, it was not recommended that the worker return to work in the construction industry. The case manager indicated that the worker’s claim would be referred to vocational rehabilitation to address whether assistance in obtaining alternate employment would be cost effective. The employer asked whether cost relief would be granted as the worker’s non-compensable back difficulties in combination with his compensable injury was impacting the employer’s ability to accommodate.

In a letter dated August 24, 2009, the WCB case manager advised the employer that it was not entitled to cost relief based on WCB policy 31.05.10, Cost Relief/Cost Transfer. The case manager stated,

“Supportive care for the pre-existing condition has been accepted by the WCB. Treatment and recovery of the pre-existing condition has not significantly prolonged disability duration or costs on the claim. The pre-existing condition is recognized as a barrier to accommodation; however this is not a circumstance that would grant cost relief under policy. Therefore, cost relief is not granted on the claim.”

On September 9, 2009, an advocate representing the employer appealed the case manager’s decision to Review Office. The advocate outlined the position that the case manager erred in the interpretation and application of the WCB’s cost relief policy. The advocate argued that the claim met the requirements of 3(a)(iv) and 3(a)(i) of the cost relief policy on the basis that the worker’s back condition added to the claim costs and that the worker’s restrictions had been made more extensive because of his pre-existing back condition making it more difficult for the employer to accommodate the worker.

The advocate stated that the worker’s pre-existing condition caused, at least in part, the worker’s inability to return to gainful employment. He stated it was important to note that per the WCB examination notes of August 12, 2009, the WCB accepted responsibility for a physical restriction directly related to the worker’s pre-existing back condition and that the pre-existing condition had made this restriction worse and more extensive.

On September 23, 2009, Review Office determined there was no entitlement to cost relief. Review Office acknowledged that the worker sustained a significant injury involving his left ankle/leg on February 28, 2007 and that he underwent multiple ongoing surgeries and had permanent left ankle restrictions. It stated that the acceptance of the worker’s back problems were a “further injury subsequent to a compensable injury.” It was not a pre-existing condition that was injured at the time of the workplace accident.

Review Office was of the view that the worker’s disability duration and the employer’s inability to accommodate the worker were solely due to the significant ankle/leg injury and its multiple surgeries and the course of ongoing care and treatment. Review Office felt the worker’s soft tissue back problems were a small part of this claim and had neither extended nor significantly prolonged the worker’s disability period. It indicated that the employer’s work environment was not suitable for the worker’s ankle injury and was outside the worker’s physical restrictions which was why the case manager suggested to the employer that the worksite was not a safe environment for the worker. It was not because it was unsuitable for the worker’s back as the work offered by the employer of “general site work” (July 14, 2009) was within the worker’s temporary back restrictions. On October 2, 2009, the employer’s advocate 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.

The Policy describes certain specific circumstances when the costs associated with a claim 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 appeal was advanced by an employer advocate on behalf of the accident employer. It was submitted that the worker’s back condition was a serious condition which resulted in permanent restrictions. The employer had to consider all of the worker’s permanent restrictions when considering whether permanent workplace accommodation was feasible. The “extra” restriction made accommodation more difficult, thereby materially contributing to the need for vocational rehabilitation and/or long term wage loss coverage. Basically, both the compensable workplace injury and the pre-existing back condition, in concert, caused the need for permanent restrictions.

It was also submitted that it did not matter that the original injury was to a different body part (ie. the ankle). The Policy did not preclude granting cost relief when a pre-existing condition has worsened the effects of a subsequent injury. Once the back condition was accepted as compensable, then a pre-existing condition which has materially affected the back injury would allow the granting of employer cost relief.

Overall, it was the employer’s position that the evidence supported that the worker’s pre-existing back condition had added to the costs of the claim. Furthermore, the worker’s restrictions had been made more extensive because of his pre-existing back condition, and as such, vocational rehabilitation and potential accommodation by the employer had been made much more difficult. The worker’s inability to return to gainful employment was caused, at least in part, by the pre-existing condition, and therefore, it would be fair for the employer to be relieved of some of the costs of the claim.

Analysis:

In order for the employer’s request for cost relief to be granted, the panel must find that the claim was either caused by a pre-existing condition or was significantly prolonged by the pre-existing condition, as per subsection 3(a)(i) of the Policy.

At the outset, the panel accepts the analytical framework proposed by the employer which argues that the Policy does not preclude granting cost relief in circumstances such as this where the pre-existing condition relates to a further injury subsequent to a compensable injury, rather than to the original compensable injury. We agree that once the condition is accepted as compensable, cost relief may be granted if the claim is significantly prolonged by the pre-existing condition. We note that for obvious temporal reasons, a claim could never be “caused by” a subsequent injury.

The decision, then, turns on the specific facts of this case and the panel must ask whether or not the worker’s pre-existing low back condition significantly prolonged the claim. On a balance of probabilities, we find that it did not.

In the present case, the worker suffered a very serious fracture of his left ankle. His recovery was slow and complicated by concerns about infection. His last surgical procedure was on November 20, 2008. The orthopedic surgeon’s most recent report of December 23, 2009 indicated that the worker was functioning reasonably well with a malunion of the distal tibial plafond and advanced posttraumatic arthritis in the ankle. He had no real complaints of pain, but did have issues with fitting shoes and was unable to get back to construction type work. A fusion procedure or amputation remained a possibility in the future should his functioning decrease. The worker’s condition would continue to be monitored on a six month basis. In the panel’s opinion, it is clear that the worker’s left ankle injury remains symptomatic and that his claim remains open primarily because of those symptoms. His condition has not yet plateaued medically.

The WCB’s decision that there was no viable occupational goal and that vocational rehabilitation would not be pursued was based on a number of factors, including the worker’s age, the extent of his injury, his level of education and his transferable skills. The worker was over age 65 at the time of the accident, and accordingly, wage loss benefits would only be payable for a maximum of 4 years. Given that his wage loss benefits would only be paid until February 2011, it was determined that the resources required to provide the worker with the necessary skills to return to gainful employment in a new occupation would be cost prohibitive. While the pre-existing low back condition was no doubt one of the factors considered with regard to the worker’s employability, it was not a major factor in the decision. Overall, we do not think that the restrictions related to the worker’s low back, in and of themselves, “significantly prolonged” the claim.

As the panel does not accept that the worker’s claim was significantly prolonged by a pre-existing condition, we therefore decline to grant the employer cost relief as requested. The employer’s appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 30th day of June, 2010

Back