Decision #106/10 - Type: Workers Compensation
Preamble
The employer is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that there was no pre-existing condition affecting the worker's recovery and therefore the employer was not entitled to cost relief. A file review was held on November 1, 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 lower right abdominal/groin pain which she related to a work incident that occurred on September 18, 2006 while lifting a resident from the bed with a hoyer lift onto a wheelchair.
A doctor's first report dated October 16, 2006 showed that the worker was treated on September 26, 2006. Subjective complaints included pain over the right paralumbar muscles. The diagnosis rendered was abdominal muscle pain.
On October 3, 2006, the worker sought medical treatment for complaints of a painful lower abdomen on the right side. Objective findings included localized pain over the inguinal canal, no hernia palpable, pelvis normal and increased pain with hip flexion and walking. The diagnosis was a lower abdominal muscle strain.
On October 12, 2006, the worker attended physiotherapy and the diagnosis outlined was a right hip/groin strain.
Based on information received from the treating physician and an opinion expressed by a WCB medical advisor, a WCB case manager determined on January 8, 2007 that the worker had recovered from the abdominal injury suffered on September 18, 2006. The worker disagreed with the decision which led to a further investigation by primary adjudication.
A soft tissue sonogram was performed on February 12, 2007. The results showed no evidence of herniation in the inguinal or femoral canal regions. It was felt that the worker's discomfort and pain may be associated with tendons and/or ligaments around the hip joint.
A report received from a rheumatologist dated February 14, 2007 stated in part: "By her history and examination findings, I suspect that she likely injured her right hip flexors." The rheumatologist ordered an MRI to rule out other pathology.
The MRI dated March 16, 2007 revealed no evidence of a stress fracture or avascular necrosis. There were no significant degenerative changes and a definite acetabular labral tear was not evident "although detection without the benefit of intra-articular contrast is not optimal."
On April 10, 2007, a WCB medical advisor examined the worker and was unable to provide an anatomic diagnosis for her pain based on the inconsistent clinical examination, the normal imaging studies which included the MRI. There were no objective findings to support the worker's claim of severe pain.
In a decision dated April 12, 2007, the WCB case manager advised the worker that based on new medical information and the findings of the WCB call in examination, he was unable to accept further responsibility for the September 18, 2006 workplace injury.
On April 21, 2008, an advocate for the employer asked the case manager to determine whether a pre-existing condition was impacting the worker's recovery from an injury and whether cost relief could be considered.
On May 26, 2008, a WCB medical advisor reviewed neurology and MRI reports on the file and stated: "The NCS ("nerve conduction studies") shows no evidence of a neuropathic process to account for her right groin pain. The MRI shows a disc protrusion at L4L5 which comprises the left L5 nerve root. This is not likely accounting for her current symptoms. Her symptoms are right sided and the pathology on MRI is left sided. The L5 nerve root would not cause referral of pain to the groin, even if it were on the appropriate side. When I examined the claimant, she complained of no low back pain and no clinical findings supportive of disc pathology. From this review, the new test results provide no diagnosis for her right groin/hip pain."
On June 4, 2008, the case manager advised the worker that following a review of the updated medical information, he was unable to accept responsibility for her ongoing condition.
On October 15, 2008, the case manager wrote to the employer's advocate to advise that there was no objective findings to suggest a pre existing condition had affected the worker's recovery and therefore no cost relief could be granted to the employer.
On September 8, 2009, new medical information was reviewed by a WCB medical advisor at the request of primary adjudication. In the medical advisor's opinion, the evidence "…supports a chronological account of a right groin injury with probable evolution of regional muscular compensation and groin/hindquarter presentation. Earlier on, the clinical presentation was pain focused, however, more recent examination since the latter part of 2008 have clarified a muscular groin/hind quarter presentation. In my opinion, the ongoing presentation relates to the mechanism of the September 2006 workplace incident."
In a decision dated October 30, 2009, the case manager advised the employer that based on a recent review of medical information by a WCB healthcare advisor, the WCB accepted that the worker's ongoing difficulties were related to the September 2006 work place injury and that wage loss benefits would be paid between December 28, 2006 to April 14, 2009 inclusive.
On November 5, 2009, the employer's advocate asked the case manager to review the claim for employer cost relief. On November 17, 2009, the case manager advised the advocate that there was no evidence of a pre-existing condition delaying recovery. The employer's advocate appealed the decision to Review Office on January 5, 2010. The advocate believed that the weight of evidence did not support that the worker's low back pathology was caused by her work accident and related right groin injury.
On March 24, 2010, Review Office determined that the worker was entitled to wage loss benefits beyond December 27, 2006 and that the employer was not entitled to cost relief. Review Office found no evidence to suggest that a pre-existing condition resulted in any significant prolongation in the worker's symptoms. On May 6, 2010, the employer appealed Review Office's decision regarding cost relief and a file review was arranged.
Reasons
Applicable Legislation and Policy
WCB Policy 31.05.10 Cost Relief/Cost Transfers (the “Cost Relief 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.” Section 3(a)(i) of the Cost Relief 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 employer was represented by an advocate who provided a written submission. The submission asserts "…there is still plenty of evidence that the claimant had a non-compensable low back pathology which greatly increased her overall symptoms, overlapped with her work injury symptoms, and prolonged her recovery from the work injury." The advocate submitted that because the non-compensable lower back condition was also treated throughout this claim, the pre-existing condition directly contributed to and affected the costs of the claim.
The advocate submitted that the worker's low back injury was not caused by the initial workplace accident as all initial and earlier reports indicate the injury was a groin strain. He stated that cost relief should be payable as a WCB medical advisor advised that the low back pathology has affected the work injury. He noted that an MRI of the claimant's lumbar spine showed disc protrusion with spinal canal impact, that a WCB medical advisor "…clearly diagnosed the claimant's workplace injury as a groin strain-right hip abductors…", without making any reference to a low back injury, and that another physician concluded that she likely injured her right hip flexors.
The advocate concluded that "…it has not been supported that the claimant's low back pathology was caused by her work accident. However, the compensable work injury was negatively impacted by the low back pathology and the employer should qualify for cost relief…"
Analysis
The employer claimed cost relief related to a pre-existing back condition. The panel is of the view that section 3(a)(i) of the Cost Relief Policy does not apply. There is insufficient evidence, on a balance of probabilities, to support the employer's position that the worker’s left sided low back condition either caused or prolonged the worker’s recovery.
In reaching this decision the panel relies upon the following information from the file:
· WCB medical advisor's opinion dated May 26, 2008 which comments that "The MRI shows a disc protrusion at L4L5 which compromises the left L5 nerve root. This is not likely accounting for her current symptoms. Her symptoms are right sided and the pathology on MRI is left sided. The L5 nerve root could not cause referral of pain to the groin, even if it were on the appropriate side. When I examined the claimant, she complained of no low back pain and had no clinical findings supportive of disc pathology."
· September 8, 2009 report by another WCB Medical advisor noting that the MRI which revealed left-sided L4L5 disc protrusion did not correlate with the presentation of right sided groin/medial thigh pain.
· The worker has consistently complained of right sided groin pain. There is an absence of complaints regarding lower left sided back pain, or pain complaints from the non-compensable disc protrusions as identified in the MRI.
· The treatments which the worker received in the lower back area did not address nerve issues or mechanical back pain arising from the lower left-sided disc protrusion. Rather, treatment was focused on the lower right paraspinal muscles, right quadratus lumborum and right iliolumbar ligaments. The panel notes that these treatments aimed at a muscular condition related to the compensable injury to the groin area and eventually resulted in improvement to the worker's condition.
For these reasons, the panel does not accept the employer's submission that the claim was significantly prolonged by a pre-existing condition. We therefore decline to grant cost relief. The employer's appeal is dismissed.Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 10th day of November, 2010