The Appeal CommissionThe Workers Compensation Act of Manitoba

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 employer was represented by an advocate in this appeal. The employer's position was that the worker had non-compensable, pre-existing medical conditions that had significantly prolonged the subject claim and that as a result, the accident employer was eligible for 50% cost relief.In her written submission to the Appeal Commission, the advocate highlighted five points used as rationale in the Review Office decision, with which the employer took issue:

1. The facts of the claim were that the worker experienced injury to his right wrist in April 2000 and it was now eleven years post-accident. It was well-documented that the worker had a pre-existing condition that pre-dated the current claim. It was submitted that the worker's rehab plan and job search was limited due to the pre-existing condition and not the compensable right wrist injury or the lack of transferrable skills.
2. While it was a correct statement that the accident employer was unable to accommodate the worker following his compensable wrist injury, this was not a factor which would affect entitlement to cost relief. Further, the current re-employment provision was not in place at the time, nor would the worker have qualified for such accommodation. It was submitted that reference to lack of accommodation was irrelevant and inappropriate and suggested that the eventual decision was intended to be punitive.
3. The employer did not disagree that the original three-year VR plan was reasonable, but pointed out that the overall goal to obtain employment was never attained. Due to this lack of success, the WCB "deemed" the worker to acknowledge that there was a level of income he was capable of earning. It was submitted that the wrist-related claim was prolonged more than seven years due to lack of a successful VR outcome. The reasons for the significantly prolonged claim included the impact of the non-compensable pre-existing problems. Were it not for the pre-existing depression and stress-related anxiety, the worker's job opportunities would have likely, on balance, been greater which would have removed the need for him to explore employment goals that required further education and/or training.
4. Review Office's reference to the fact that the worker had a 16% PPI was irrelevant and inappropriate to the issue under appeal. Permanent impairment awards do not equate to "total" disability and are not intended to compensate for a worker's loss of function or "loss of earning capacity."
5. The employer's position on the claim was not, as noted by Review Office, based on conjecture. The employer's submission was articulated with clear and succinct arguments supported by factual information contained on the WCB file. While it was the prerogative of Review Office to apply a level of weight on the evidence and arguments put forth, it was unreasonable to totally disregard and ignore that evidence.

Overall, the employer's position was that the worker had a long-standing, pre-existing depression and anxiety condition that significantly prolonged the claim. It was submitted that the condition was the reason for termination of the worker's supervisory position with his prior employer. He had only worked for two months with the accident employer prior to the compensable injury therefore his ability to sustain employment was not clearly established. The worker had been receiving treatment for the pre-existing condition prior to and after the compensable injury. The number of National Occupational Classifications ("NOC") the worker would accept as part of his three-year vocational rehabilitation plan was limited due to the condition and therefore NOCs consistent with his compensable restrictions and capabilities were eliminated. The vocational rehabilitation plan to date had extended to more than ten years without successful re-employment. On a balance of probabilities, it was submitted that the weight of evidence supported that the worker's unsuccessful job search and claim duration of eleven years was clearly impacted by the pre-existing condition. The awarding of 50% cost relief to the accident employer was therefore warranted.

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 the evidence does not support the position that the worker had a pre-existing condition which either caused the claim or significantly prolonged the worker’s recovery.

The panel does acknowledge that the worker had a clinical history of depression and stress-related anxiety. We agree that this constituted a pre-existing psychological condition. The information on file, however, indicates that the pre-existing condition was being successfully treated and controlled through medication and psychological counseling. A psychological assessment report dated October 21, 2002 stated: "[Worker] indicated that, despite his history of depression, at the time of the assessment he was coping well with his work-related injury and loss of employment." The recommendation was that: "[Worker] continue with his current treatment for depression, which apparently had been helpful to him." The panel finds that although the worker had been previously diagnosed with depression, this condition was being successfully controlled and did not affect the worker's ability to participate in his vocational rehabilitation plan. There is no indication that the worker's cooperation and participation in his vocational rehabilitation were affected by his pre-existing condition. The file does not reflect a pattern of unexplained absences or failures to engage on the part of the worker. In fact, the vocational rehabilitation specialist noted that the worker was an active participant and a pleasure to meet. The panel does not accept that the pre-existing condition significantly prolonged the claim by affecting the worker's ability to participate in the vocational rehabilitation plan.

There is reference in the file to the fact that the worker should avoid certain occupations due to his emotional health concerns. The psychologist's assessment was: "Client should probably avoid careers in which assertive leadership skills are required." A voc rehab memo to file stated: