Decision #97/11 - Type: Workers Compensation
Preamble
This appeal deals with the employer's entitlement to cost relief on the claim. Primary adjudication and Review Office determined that the employer was not entitled to cost relief on the grounds that there was no evidence of a pre-existing condition which had significantly contributed to the worker’s time loss from work or significantly prolonged his recovery. The employer’s consultant disagreed and filed an appeal with the Appeal Commission. A file review was held on June 20, 2011 to consider the matter and render a final decision.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 March 21, 2007, the worker suffered a work-related injury to his left lower leg and was taken to hospital and underwent immediate surgery to repair damage to the muscles. The accepted compensable diagnoses were a fracture of the left distal tibia plafond, segmental fracture of the fibula, syndesmosis disruption and compartment syndrome.
On March 27, 2007, the worker underwent a second surgery to his left lower leg to apply a plate and screws to the fractures of his fibula and tibia that would aid in stabilization during healing. Following the surgery he was given a number of courses of physiotherapy and was followed in clinic for cast changes and recovery progress examinations.
On August 2, 2007, he was referred to an orthopaedic surgeon for ongoing care who noted that, according to imaging results, the fractures were healing but he continued to note pain and circulation issues. The surgeon also observed a surgically implanted retaining screw that would need to be removed when appropriate. The surgeon remarked that the worker continued to be off work and will likely have a permanent deficit as a result.
On October 2, 2007, the worker underwent a third surgery to remove the syndesmosis screw from his left ankle. In a follow up visit on October 17, 2007 the orthopaedic surgeon noted that the wound was well healed and the worker continued with physiotherapy to address range of motion and ankle stiffness.
On December 13, 2007, the orthopaedic surgeon again saw the worker and determined that his recovery had progressed and no further surgical intervention would be needed. He also noted that the worker would have further improvements over a number of months in relation to his pain and loss of motion of the ankle. The surgeon discharged his follow-up care to the family physician for determinations regarding return to work.
On January 25, 2008, the case manager wrote a memorandum to the file regarding the Workers Compensation Board ("WCB") healthcare review and application of temporary restrictions. Contact was made with the employer to begin a return to work plan for work options, hours of work and an effective date for the worker's return. File information shows the worker began a graduated return to work on January 31, 2008 starting at 4 hours a week. Further documentation notes that by April 2008 the worker had achieved 12 hours a week which was increased in June 2008 to 20 hours per week. In September he had increased his hours again and was working 5 hours per day, 5 days a week. He was also attending occupational therapy sessions.
In November 2008, the worker ceased making progress in hours of work. His family physician contacted the WCB and requested a consultation with a physical medicine and rehabilitation specialist to determine a different approach to treatment as the worker was experiencing difficulties and was unable to increase his hours beyond 5 hours per day.
On February 5, 2009, the worker was examined by a WCB physical medicine and rehabilitation consultant ("physiatrist") who opined that the worker had an injury-related neuroma that was causing hypersensitivity near the area of the surgical scar. The design of his current brace was causing pressure resulting in increased sensitivity and irritation of symptoms. There was significant restriction in range of movement of the left ankle, and, as well, he was suffering from back, hip and right leg symptoms associated with an altered gait. The consultant recommended a properly fitted cane, a different day use shoe, a night splint and fitting for heel orthotics to correct his gait. The consultant recommended further adjustments to his working orthotic and brace to distribute the contact surface area over the calf and produce less irritative symptoms.
On April 14, 2009 the employer was advised that as a result of the WCB physiatrist consultant's examination, a review of the file was completed resulting in a change to the workplace restrictions: avoid lifting or carrying more than 50 pounds; avoid use of ladders; avoid repeated walking on uneven surfaces; avoid walking or standing more than one hour without the opportunity to rest for a few minutes and; a requirement for a leg brace and ankle orthosis at all times while at work. The WCB also recommended increasing the hours of work by one hour each month until a full shift was possible. The restrictions would be reviewed upon completion of the graduated return to full hours.
Following the implementation of the recommendations by the WCB physiatrist consultant, the worker continued to have difficulties increasing his hours of work.
On May 27, 2009 the employer's advocate informed the WCB that the employer would no longer be able to provide the worker with modified duties. They questioned whether the temporary physical restrictions would be made permanent. They concluded that "In light of [the employer's] inability to currently continue to accommodate the clmt (sic) and because of his pain management issues, we would ask that the WCB please assign his claim to a Vocational Rehabilitation Counsellor (VRC) for further assessment and potential V/R intervention."
On June 1, 2009, following confirmation that a continued accommodation with the employer was not possible, the return to work plan was cancelled and the worker was referred internally by the WCB for a vocational rehabilitation assessment. A functional capacity evaluation was performed. His physical capacity was demonstrated at the medium strength demand level for lifting from floor to waist and heavy when lifting above the waist. After a review of the results, the following temporary restrictions were imposed: walking and standing on occasional basis; limit crouching and climbing stairs; limit pushing and pulling to 75 pounds; carrying on occasional basis limit weight to 40 lbs; lift from floor to shoulder limit weight to 50 lbs.
On June 22, 2009, the employer's advocate contacted the case manager requesting cost relief. The case manager replied the same date informing the advocate that the worker had suffered a multi-fracture due to the work injury and no pre-existing condition was evident.
On August 21, 2009, the file was reviewed to determine whether the worker would be entitled to a permanent partial disability award. A WCB general medical consultant noted the compensable diagnoses were: "injury left leg, compartmental syndrome left leg, segmental fracture left fibula, plafond fracture left ankle, sural nerve damage. The worker continues to have signs and symptoms of neurological pain, evidence of damage to the sural nerve and loss of mobility left ankle. He has been referred to a pain clinic for the neurological pain. The claimant is at maximum medical improvement. There is no major pre-existing condition related to the permanent partial impairment, the worker will be evaluated."
On January 18, 2010, the worker underwent a fourth surgery by the orthopaedic surgeon to remove the remaining screws and plate from his lower left leg. In a follow up exam the orthopaedic surgeon referred him for physiotherapy.
On March 1, 2010, the worker attended the WCB offices for a call-in examination to determine if his current psychological difficulties were a result of his compensable injury. The WCB psychiatric consultant examined him and recommended that the worker enter a treatment program. The consultant further opined that the worker was unable to participate in aspects of his recovery, including attending school or participating in a vocational rehabilitation plan.
On March 17, 2010, the case manager informed the worker that his ongoing difficulties as identified by the WCB psychiatric consultant had no relationship to his compensable injury. Therefore, wage loss benefits would be suspended during the treatment program. Upon completion of the program the WCB would review his entitlements.
On June 14, 2010, the case manager wrote a memorandum to the file that the worker had successfully completed the treatment program. The worker was informed that in early August he would resume his vocational rehabilitation program. However, should he be unable to participate in vocational rehabilitation, his WCB benefits would be terminated.
On February 15, 2011, the employer's advocate asked Review Office to reconsider the decision made by primary adjudication to deny the employer cost relief.
On March 17, 2011, Review Office confirmed that the employer was not entitled to cost relief. Review Office stated in its decision that the evidence on file showed that the worker suffered significant permanent physical injuries to his left leg, ankle and foot in 2007. This led to a multitude of medical examinations, consultations, and treatments. The worker was assessed and was awarded a 14% permanent partial impairment. Due to his physical injuries, the worker was unable to return to his prior occupation and required vocational rehabilitation assistance. Review Office indicated that in its view, the majority if not all costs of this claim were specific to the injuries sustained by the worker in 2007. There was no evidence to support that a pre-existing condition had significantly prolonged recovery from the work injury and had impacted the duration and/or costs of the claim.
On March 21, 2011, the employer's advocate appealed Review Office's decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation and Policy
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 case 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, Cost relief/cost transfers.
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…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.
Employer’s Position
The employer’s representative provided a written submission. It was stated that the worker's inability to participate in and successfully complete a vocational rehabilitation ("VR") program and re-coup at least some degree of his pre-accident earning capacity is due primarily to the well- documented pre-existing condition and the need for treatment of that condition that was necessary before a VR program could succeed. The advocate reiterated the reasons put forward in its Review Office submission. The advocate noted that this claim meets the criteria in the policy regarding the granting of cost relief.
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 significantly prolonged the duration of the claim. The panel was not able to make this finding.
Cost relief can be provided 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 panel finds that the pre-existing condition did not significantly prolong the injury.
The panel notes that recent medical information brought to light by the WCB psychiatric consultant provided insight into the nature of a secondary non-compensable issue that may have affected the claim. The panel reviewed the actual medical management of the file and vocational rehabilitation management to determine whether, in fact, there were significant delays resulting from the non-compensable concurrent condition. We found that the evidence does not support any such delay.
The case manager was prepared for and instituted a graduated return to work (GRTW) as soon as appropriate medical restrictions were imposed and the employer confirmed they had duties available respecting those restrictions. The file evidence shows that for the first 10 months of the claim the worker underwent three different surgeries and numerous courses of physiotherapy before his injury had stabilized sufficiently to begin a GRTW. The GRTW had progressed with many documented interventions by the case manager and an occupational therapist to solve medical barriers, workplace issues and difficulties that had arisen.
The GRTW was concluded by the employer on June, 1, 2009 when the employer had notified WCB that they were unable to continue to provide modified work for the worker and suggested that the worker be referred for vocational rehabilitation assessment. This event occurred 13 months after the GRTW had been initiated and, some 26 months after the compensable injury.
The medical evidence on file shows that the worker's functional limitations and recovery were followed appropriately by the attending physician, two orthopaedic surgeons and a number of WCB medical consultants. The worker was assessed by a WCB orthopaedic consultant 9 months after his third surgery. The worker was again assessed by a WCB physical medicine consultant 7 months later as requested by the attending physician. This was three months preceding the end of the GRTW. The worker underwent his fourth and final surgery and physiotherapy treatment related to the compensable injury approximately 3 years following his injury.
The panel also looked very closely at all medical documents and reports and could find no evidence that the worker's pre-existing psychological problem was active immediately prior to the March 1, 2010 call-in exam. In the correspondence, memorandums and letters there was also no evidence of a concurrent condition interfering with the worker's medical treatments for his compensable injury or his VR plan.
The medical evidence shows that once the worker displayed psychological difficulties, he was assessed by a WCB psychiatric consultant who recommended an immediate and appropriate treatment plan to deal with the non-compensable concurrent condition. The WCB adjudication decision, at that time, suspended further vocational rehabilitation, wage loss and medical aid benefits until successful completion of the treatment.
The panel finds that the worker, following a severe workplace injury, had participated in all aspects of his treatment and recovery. We also find that the WCB had engaged a timely and appropriate return to work within a heavy industry.
The panel finds that the evidence does not show that the worker's pre-existing condition had any impact on either the duration of the claim or his recovery. For the reasons noted above, the panel accordingly determines that this case does not meet the requirements of WCB Policy 31.05.10 and finds that the employer is not entitled to cost relief.
The panel notes that currently, the worker is participating in his vocational rehabilitation program with no signs that his pre-existing condition has interfered with his participation. As noted by the WCB psychiatric advisor, the worker's pre-existing condition is a lifelong condition. While it may well be, in the future, the nature of the condition could possibly have a detrimental impact on the worker's participation; at this time, there is no entitlement to cost relief. The employer's appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
P. Walker - Commissioner
Signed at Winnipeg this 14th day of July, 2011