Decision #35/12 - Type: Workers Compensation

Preamble

The employer is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker's pre-existing condition did not prolong the duration of the claim and therefore the employer was not entitled to cost relief. A file review was held on January 16, 2012 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 has an accepted claim with the WCB for bilateral carpal tunnel syndrome based on a decision made by the Appeal Commission on April 27, 2011. A complete background of the case leading up to the Appeal Panel's decision can be found under Appeal Commission Decision No. 52/11.

On May 4, 2011, the employer's representative asked the WCB to consider cost relief based on the last line of the April 27, 2011 decision which stated:

The panel therefore finds that there is an acceptable claim for aggravation and enhancement of a pre-existing bilateral CTS condition.

In a letter dated August 24, 2011, the employer was advised by the WCB that cost relief would not be granted, based on the following rationale:

While this decision states the opinion of the panel that there was a pre-existing condition, their opinion was not based on any medical evidence of a pre-existing condition. The opinion they quoted in support of their position does not in fact state that there is a pre-existing condition. After reviewing the file, a WCB Medical Advisor has offered the opinion that there is no medical evidence of a pre-existing condition.

The criteria for a decision on whether a claim is acceptable is different than the criteria used to make a decision on entitlement to cost relief. Furthermore, the existence of a pre-existing condition is only part of the criteria for entitlement to cost relief. The pre-existing condition must also have "significantly prolonged" the claim. As the Medical Advisor was unable to identify a pre-existing condition we are therefore unable to state the claim was significantly prolonged by a pre-existing condition. Therefore we are unable to grant cost relief on that basis.

On August 31, 2011, the employer's representative asked the WCB to reconsider the above decision based on four factors. On September 6, 2011, primary adjudication upheld the decision that there was no entitlement to cost relief.

In a submission to Review Office dated September 15, 2011, the employer's representative appealed the September 6, 2011 decision and argued that the employer should be entitled to 50% cost relief based on WCB Policy 31.05.10, Pre-existing Conditions, Schedule "A", which allowed for 50% cost relief in claims involving a pre-existing condition where time loss exceeds 12 weeks. The submission quoted the Appeal Panel's analysis in Decision 52/11 which stated:

"The submission made by the employer strongly emphasized that the onset of the worker's CTS symptoms relatively soon after she commenced employment indicated a non-work related etiology for her condition. The panel is inclined to agree with this submission. The fact that the worker developed numbness in her hands within a month after starting her duties would suggest that the worker had a pre-existing condition or at a minimum, a propensity, to develop CTS.

The panel is satisfied that the job duties the worker was performing were sufficient to aggravate and ultimately enhance a pre-existing CTS condition.

…we consider the effect of the work duties as being an enhancement…"

The employer representative submitted that it was evident that the pre-existing CTS condition greatly contributed to the disability duration of the claim and subsequent surgical intervention. It did not agree with the September 6, 2009 rationale that "The appeal was not specific to whether there was/was not a pre-existing condition which may have contributed to the length of recovery and whether cost relief should be applied." The employer indicated that length of recovery was not a factor under consideration in the application of Policy 31.05.10, but that disability duration was a factor.

The employer's representative noted that the Appeal Panel very clearly stated that the worker had either a pre-existing condition or a propensity to develop CTS, both of which can be acceptable pre-existing conditions affecting the disability duration and/or the claim costs.

On November 10, 2011, Review Office determined that the employer was not entitled to cost relief. Review Office indicated in its decision that it was unable to find that the pre-existing condition prolonged the worker's recovery. It noted that the worker underwent left decompression surgery on February 1, 2010 and right decompression surgery on April 27, 2010. The worker's recovery from both procedures were uneventful and were within the expected recovery norms. Review Office's position was that the surgery corrected the worker's pre-existing condition, namely CTS, and that the worker's job duties enhanced the pre-existing CTS condition to the point that surgical intervention was required.

Review Office further indicated that the contributing factors to the disability duration included but were not limited to factors such as the employer's inability to accommodate the worker with modified duties and adjudication/case management process. There were no provisions to provide employers with cost relief under these circumstances. On November 17, 2011, the employer's representative appealed Review Office's decision to the Appeal Commission and a hearing 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.

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 is available to eligible employers: “Where the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition.” The cost relief criteria are described in Schedule "A" as follows:

Where the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition, 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.

Employer’s Position

The employer was represented by an advocate in this appeal. It was submitted that the Policy did allow for 50% cost relief to be awarded in view of the analysis set out in Appeal Commission Decision 52/11. The employer advocate submitted that the test was: "where a pre-existing condition has affected the disability duration and/or associated costs, the WCB may provide cost relief" and that in the present case, the pre-existing CTS condition greatly contributed to the disability duration and subsequent surgical intervention. The advocate argued that the findings by the previous Appeal Panel clearly stated that the worker had either a pre-existing condition or a propensity to develop CTS and both of these conditions could affect the disability duration and/or the claim costs. It was the employer's position that the presentation of clinical findings relatively soon after commencing employment indicated a non-work related etiology for the CTS and a pre-existing condition. If the worker had not presented with this pre-existing condition (which predated her employment but was not significant enough to seek medical assessment), the job duties would, on a balance of probabilities, not have led to the severity of symptoms requiring bilateral surgical intervention and the prolonged duration of the claim. For those reasons, it was submitted that the employer should be entitled to 50% cost relief on the claim.

Analysis:

The employer requests cost relief based on the assertion that the worker had a pre-existing condition which greatly contributed to the disability duration and subsequent surgical intervention. 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 by a pre-existing condition or was significantly prolonged by the 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 either a pre-existing CTS condition or at minimum, a propensity to develop CTS. This was a finding made by the previous Appeal Panel in Decision 52/11 and we are bound by that finding. The existence of a pre-existing condition or propensity, however, does not necessarily entitle an employer to cost relief. In the present case, it just means that the worker had some latent weakness which made her more susceptible to injury. The term "thin skull" is often used to describe this type of situation. The worker in this case had no previous diagnosis of CTS, but the Appeal Panel in Decision 52/11 found that she must have had a latent weakness in her wrists as it took a very short amount of time for her condition to become symptomatic. Once she began the job duties, the "doing" of her work caused the CTS to become active and manifest. In the circumstances, we find that it cannot be said that the worker's claim was caused by the pre-existing condition or propensity. It was the job duties which caused the claim to be made.

The panel has reviewed the history of the worker's course of treatment for her bilateral CTS and we find that it fell within typical recovery norms. Decompression surgery is commonly performed on persons who are diagnosed with CTS and in this case, the surgery was performed within normal time frames. The surgical procedure was performed on the left hand on February 1, 2010 and the right hand was subsequently done on April 21, 2010. By June 18, 2010, approximately 8 weeks post surgery, the worker was approved for modified duties, and would have been in a position to re-coup her pre-accident earnings with the employer. Unfortunately, the employer was not able to accommodate the worker at that time. This return to work would have been well within the norms for post-surgical recovery, and is not suggestive of a significant prolonging of the claim. By September 10, 2010, the worker was cleared to perform full time regular duties. While this timeline is slightly longer than typical norms, it does not vary by much and the panel does not view the worker's recovery to have been significantly prolonged.

Based on the foregoing, the panel finds that the worker’s claim was neither caused by a pre-existing condition nor was it significantly prolonged by the pre-existing condition. It therefore follows that the employer is not entitled to cost relief under the Policy. The employer's appeal is denied.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 14th day of March, 2012

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