The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with an appeal brought forward by the accident employer in regards to a decision made by Review Office of the Workers Compensation Board ("WCB") that it was not entitled to cost relief. The employer contended that the worker had major, significant, pre-existing psychological difficulties as well as pre-existing non-compensable family stressors which significantly prolonged his recovery from his soft tissue claim. A hearing was held on May 25, 2011 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 November 14, 2007, the worker sustained a crush injury to his right upper arm and head in a work related accident.  On the same day, the worker was taken to a hospital emergency facility and underwent a CT of the brain as well as x-rays of the right shoulder and right humerus.  The CT revealed no intracranial traumatic abnormality and the x-rays were read as showing no fractures or dislocation.  The worker's claim for compensation was accepted and benefits were paid to the worker.

An MRI of the right shoulder was performed on December 30, 2007.  The results were read as showing mild AC arthrosis and no abnormality of the rotator cuff was identified.

On January 23, 2008, a sports medicine specialist reported that the worker had significant soft tissue injuries in his work related event of November 2007.  The worker had ongoing myofascial pain, right shoulder impingement, right shoulder AC joint pain with underlying arthrosis, and distal neuropathic pain due to the compression injury.  The specialist noted that the worker admitted to having a history of depression and had been on medication approximately one year ago.  It was thought that the worker had associated post-traumatic distress related to the November 2007 event and some vegetative symptoms.  The specialist outlined specific treatment suggestions related to the worker's musculoskeletal condition and recommended that the worker get counselling for post-traumatic stress. 

In a letter dated March 5, 2008, a WCB medical advisor asked a clinical psychologist and neuropsychologist to assess the worker in regard to any psychological issues that may be related to the November 14, 2007 work related accident.  The medical advisor stated, in part, "No serious or potentially permanent physical injuries have been identified.  However, a consultant sports medicine physician assessed [the worker] on January 23, 2008, and felt that [the worker] displayed some vegetative symptoms and disruptions in his sleep cycle and mood that he attributed to post-traumatic stress disorder.  It is noted that [the worker] has a prior history of depression."

The worker was subsequently referred to a rehabilitation clinic and was seen for an initial assessment on March 13, 2008.  The worker then attended a 6 week reconditioning program and was considered to be at a "heavy strength level" at the end of the program. 

On June 25, 2008, the worker underwent nerve conduction studies which did not show any evidence of peripheral neuropathy in the right upper extremity.

In a report to the family physician dated October 15, 2008, the clinical psychologist assessed the worker with Post-Traumatic Stress Disorder (PTSD) symptomatology and Depressive Disorder.  The psychologist also suggested that the worker be prescribed alternate anti-depressant agents due to the side-effects from his previous prescription.

On December 3, 2008, the worker underwent a Functional Capacity Evaluation ("FCE") to determine his lifting capacity and right upper extremity strength. 

In January 2009, discussions took place between the WCB, the worker and the accident employer in regard to a graduated return to work program.  Subsequent records showed that the worker returned to work on a gradual basis for a short period of time but went off work due to physical and emotional complications.

On September 16, 2009, a WCB case manager documented a return to work meeting that took place between the accident employer representatives, the worker and the clinical psychologist. 

The employer's human resources manager indicated that prior to the injury, the worker was moody, did not communicate much, and was volatile.  Post-injury, the worker presented with the same symptoms but much more increased.  The psychologist outlined the opinion that there may be a third diagnosis of adjustment reaction. 

On February 11, 2010, a WCB psychiatrist was asked to review the file at the request of primary adjudication.  The case manager wrote:  "Worker did return to work for a short time performing graduated modified duties, but was removed from the work place for reasons related to his emotional state.  It was unclear if the reasons are directly related to his compensable injury.  However, due to economic reasons, the employer was on shut down for a number of months and will be gradually bringing workers back into the workplace.  It is yet to be determined if [the worker] will be brought back to the workplace given his state…I would appreciate if you review the file and provide your medical opinion confirming if the need for ongoing psychological treatment is related to the CI."  In a response dated February 12, 2010, the WCB psychological advisor stated:

"[Clinical psychologist's] psychological report of October, 2008 indicates that [the worker] had a depressive disorder that was being treated in the time period prior to the CI.  In order to answer the questions regarding the relationship of his current status to the CI, it is important to clarify the nature and the severity of his pre-existing psychiatric diagnosis, and its status at the time of the CI…obtain a copy of the prescribing physician's clinical notes from the time period 2002 up to the current date…"

On March 5, 2010, a representative for the employer spoke with a WCB case manager concerning cost relief.  It was felt that the worker had some pre-existing issues that affected his return to work. 

Primary adjudication contacted the treating physician on a number of occasions to obtain his clinical chart notes but to no avail.  On May 13, 2010, primary adjudication advised the employer's advocate that cost relief was not warranted.

On September 23, 2010, the advocate appealed the above decision to Review Office.  The submission indicated that the worker's pre-existing conditions affected his ability to cope with his injury and return to work in a timely fashion.  The medical information showed there was no lingering physical disability other than temporary soft tissue strain caused by underlying degeneration of the right shoulder.  The advocate noted that even without the requested psychological history, there was enough information on file to show that the worker's claim was protracted due to his acknowledged pre-existing psychological difficulties, major depression disorder and non-compensable family reasons.  While a plant shut down due to economic circumstances did contribute to a temporary delay in his return to work, there was no question that the worker's pre-existing and non-compensable problems significantly prolonged the claim's duration.

On October 21, 2010, Review Office denied the employer's request for cost relief.  Review Office indicated that it did not find evidence to show that the worker's physical or psychological injuries arising out of the November 2007 workplace event, was either caused by a pre-existing condition or was significantly prolonged by a pre-existing condition, as required in the policy for cost relief.  Review Office noted that the worker had a history of depressive disturbance but he did not receive treatment or medication for it for about one year prior to the November workplace event.  The worker had also been performing his full regular duties at the time of the accident.  It found that the worker's depressive disturbance or his shoulder "arthrosis" were not factors delaying the worker's recovery.  The employer disagreed with this decision and an appeal was forwarded to the Appeal Commission.

Reasons

Applicable legislation

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 appeal 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.”

Worker's Position

The worker did not participate in this appeal.

Employer's Position

The employer was represented by an advocate who provided a detailed written submission on behalf of the employer.  The representative submitted that the medical information on the claim file clearly shows that the worker had major and significant pre-existing psychological difficulties as well as pre-existing non-compensable family stressors which significantly prolonged his recovery from his soft tissue claim.  She noted that the worker had pre-existing degeneration in his right shoulder which also prolonged his recovery and ability to return to work.

She noted that a physician related a history of depression for which the worker took anti-depressant medication.  She also noted that a psychologist provided a report detailing the worker's psychological status.  The psychologist's assessment was that the worker has PTSD and a Depressive Disorder.

The employer representative noted family stressors were evident through the claim.

The employer representative submitted that the WCB should have obtained information from the treating physician who made the diagnosis of Major Depression before it denied cost relief to the employer.  She submitted however,  that even without the psychological history, there was enough information on file to show that the claim was protracted due to his acknowledged pre-existing psychological difficulties in particular, a major depressive disorder.

The employer representative noted that medical testing showed that the worker had few physical deficits or findings as a result of the compensable injury, just the pre-existing arthritis in his shoulder. 

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. The evidence is clear that the accident was not caused by the worker's pre-existing condition.

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 employer representative submitted that the worker had pre-existing psychological difficulties, pre-existing non-compensable family stressors and pre-existing degeneration in his right shoulder which significantly prolonged the duration of the claim.  The panel finds that the pre-existing conditions did not significantly prolong the injury.

With respect to the worker's major depressive disorder, the panel notes the comments by the psychologist in a report dated October 15, 2008.  The psychologist commented that:

"Hence, this is a man who has been very motivated in regards his rehabilitation.  He is a very introversive, somewhat ruminative individual. He has a history of previous depressive disturbance, but developed Post-Traumatic Stress Disorder and another episode of depression surrounding his occupational injury, his physical symptoms, and the lengthy course he has had over time."

These comments by the psychologist do not support a finding that the worker's previous depressive disorder prolonged the injury or duration of the claim.  The worker had in fact not been treated for or taken medications for depression at least one year prior to the compensable injury.  As such, this prior condition did not play a role in significantly prolonging the claim.  The panel finds that the worker's PTSD and need for extensive desensitization therapy resulted directly from the traumatic accident and in and of itself resulted in a prolonged claim.  It does not provide a basis for cost relief.

The panel has reviewed the complete claim file and notes there were many events and issues that impacted the duration of the claim which were related to his eventual successful return to full regular duties.  These included the care and desensitization treatment that involved his former co-workers; the number of job offers that required occupational assessments; layoffs and collective agreement issues; and a reduction in the workforce.  Due to a co-operative effort from the employer's management and supervisors, the union, the case manager, the worker's care givers and the worker, the worker resumed his full duties in his pre-accident position.

The panel notes that the worker appears to have successfully returned to work and that this appeal relates only to cost relief and not to the merits of the worker's entitlement to benefits.

The employer's appeal is dismissed.

Panel Members

Panel Members:
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 30th day of June, 2011