Decision #98/12 - Type: Workers Compensation

Preamble

The employer is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which declined to grant the employer cost relief on the basis of a pre-existing condition. A file review was held on August 9, 2012 to consider the matter.

Issue

Whether or not the employer is entitled to cost relief.

Decision

That the employer is entitled to cost relief.

Decision: Unanimous

Background

On October 23, 2010, the worker was helping his partner lift a heavy patient onto a stretcher when he felt a popping sensation in his lower abdomen. When he attended a hospital for treatment on the day of accident, the worker was diagnosed with a reducible abdominal hernia. It was reported that the worker had a previous history of abdominal hernias and 3 surgery repairs around the area. Due to the complexity of the worker's case and a lengthy waiting list, the worker's hernia repair did not take place until May 26, 2011. On June 13, 2011 the worker was re-admitted to the hospital because of an infected surgical incision.

On July 5, 2011, a WCB medical advisor reviewed the worker's claim and answered questions posed by a WCB case manager. The medical advisor stated:

  • the diagnosis related to the October 23, 2010 workplace accident was a recurrent incisional hernia. He noted that the worker had a previous history of a massive ventral incisional hernia repair done on January 17, 2002.

  • with regard to whether there was a pre-existing condition that materially contributed to the diagnosis, the medical advisor indicated that the worker's past history of massive incisional hernia repair in 2002 created a potential site of fascial weakness and the worker's obesity predisposed him to recurrence of his incisional hernia.

  • the occurrence of a wound infection that would require ongoing care may contribute to a delay in the worker's return to his workplace.

Ongoing medical reports showed that the worker was treated for various complications stemming from the original hernia repair which required two hospital stays and daily dressing changes.

On March 19, 2012, primary adjudication again referred the file to the WCB medical advisor to review ongoing medical reports and to answer specific questions. The medical advisor stated:

  • based on documentation of a chronic wound infection and an abdominal wall infectious process that has occurred since the May 26, 2011 mesh repair of the worker's recurrent incisional hernia, the likely diagnosis was that of an abdominal wall chronic sinus and abscess formation secondary to infected mesh placed during the course of the recurrent incisional hernia repair of May 26, 2011.

  • on December 8, 2011, the worker's general surgeon opined the diagnosis of a sinus tract between the abdominal wound and umbilicus. Chart information submitted by the hospital would support the diagnosis of an abdominal wall chronic sinus and abscess formation. Despite appropriate care, the persistence and chronicity of the infectious process would likely indicate infection of the mesh placed at the recurrent incisional hernia repair of May 26, 2011.

  • the abdominal wall chronic sinus and abscess formation has likely arisen out of the May 26, 2011 surgical repair of the worker's recurrent incisional hernia. The May 26, 2011 surgery repair was appropriately done in response to a recurrent incisional hernia that had likely arisen out of the workplace activity of lifting a heavy patient on October 23, 2010.

On March 22, 2012, the accident employer's representative outlined the view that the employer was entitled to cost relief, as a second surgical procedure was being planned for the worker and the worker's obesity was the main reason for his failed first surgery.

By e-mail correspondence dated March 27, 2012, the WCB case manager advised the employer's representative that the infection and the secondary tear were the main reasons for the worker's delay in recovery. He stated that WCB policy does not allow Body Mass Index ("BMI") as a medical condition that would warrant cost relief. He stated: "We accept the worker as they (sic) were at the time of the injury and the fact that the worker was already obese at that point in time further removes the potential for cost relief due to weight."

In a decision dated April 12, 2012, the WCB case manager confirmed that cost relief would not be granted to the employer as adverse BMI was not considered a pre-existing condition that would allow for cost relief.

On June 8, 2012, the employer's representative appealed the April 12, 2012 decision to Review Office. He argued that the medical evidence demonstrated that the worker's hernia condition was greatly prolonged and complicated by his pre-existing medical conditions of obesity, tobacco dependency and diabetes. He noted that in a normal person, a hernia repair would result in 6 to 8 weeks of recovery time and that this claim has been ongoing for 2 years. He noted that the worker's biggest problem with his recovery had been his chronic wound infections. He noted that obesity was a medical condition that had far-reaching negative medical ramifications and that diabetes was a known cause of wound healing problems and infections in surgical patients.

On June 14, 2012, Review Office determined that the employer was not entitled to cost relief.

Review Office indicated that cost relief was granted on a claim where the pre-existing condition was the primary cause of the injury or where a pre-existing condition had significantly prolonged the injury or significantly affected the duration of the claim. Review Office indicated that it was clear from the evidence that the accident was caused by lifting a heavy patient in a stretcher and was not caused by the worker's weight or any pre-existing condition. It found that a pre-existing condition did not significantly prolong the injury.

While the worker has pre-existing diabetes, Review Office found no evidence that this had significantly delayed the claim duration. Review Office noted that the worker started out with an "enormous hernia" and much of the delay at the outset had to do with the period it took for him to have surgery (medical delays that were not within the WCB's control and was not a criterion for cost relief). When the worker eventually had surgery for his compensable injury, this led to a course of infections, two hospital admissions, continuing medical care, post-operative inflammatory changes, pain, another abscess and the need for another surgery. Review Office found, on a balance of probabilities, that the duration of the claim arose out of the injury that occurred on October 23, 2010 and was not significantly delayed by the worker's pre-existing diabetic condition.

Review Office also indicated that risk factors were not pre-existing conditions. The worker's body habitus and any tobacco dependence were not pre-existing conditions but rather personal risk factors. Risk factors were not criteria for relieving costs on a claim. At the time of the accident, it was the act of lifting a heavy patient that resulted in the worker's hernia and not his weight. On June 15, 2012, the employer's representative appealed Review Office's decision to the Appeal Commission and a file review 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.”

Subsection 3(a)(iii) of the Policy provides that cost relief is available where a subsequent compensable injury occurs outside the workplace while the worker is already receiving benefits and the second accident extends the period of time loss. The cost relief criteria and method of cost allocation are described in Schedule C.

Schedule C provides as follows:

Where a worker is receiving benefits and the duration of benefits is extended due to a further separate injury which is compensable under the Board's policy on "Further Injuries Subsequent to a Compensable Injury", the additional costs attributable to the further injury may be eligible for cost relief in the following circumstances:

(i) where the further injury arises out of a situation over which the WCB exercises direct specific control; or

(ii) where the further injury arises out of the delivery of treatment for the original compensable injury.

Employer’s Position

The employer was represented by an advocate in this appeal. It was submitted that the WCB's decision ought to be overturned on the basis that the worker's pre-existing conditions were delaying surgery which, in turn, was delaying recovery. The employer's position was that the medical evidence clearly demonstrated that the worker's hernia had been prolonged and complicated by his pre-existing medical conditions of obesity and diabetes, which were further complicated by his risk factor of tobacco use. These conditions had prolonged the worker's recovery and inflated the costs of the claim. Furthermore, the next step in the worker's recovery process was surgery, but that surgery was placed on indefinite hold because of the worker's obesity. The employer asked: "This begs the question: if the claimant's pre-existing medical condition obesity is never corrected, will this claim go on until he is 65 years of age … and, is that fair for the employer?" It was submitted that the claim easily met the criteria of WCB's cost relief policy and it was asked that the employer's request for cost relief be granted.

Analysis:

The employer is seeking cost relief based on subsection 3(a)(i) which provides cost relief in circumstances where the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition. For the reasons that follow, the panel finds that while the employer is not entitled to cost relief under subsection 3(a)(i), the employer is entitled to cost relief under subsection 3(a)(iii).

Subsection 3(a)(i)

In order for the employer to qualify for cost relief under section 3(a)(i) of the Policy, the panel must find that the worker’s claim was either caused by a pre-existing condition or was significantly prolonged by the pre-existing condition.

On the facts of the case, we are of the view that cost relief is not available to the employer under subsection 3(a)(i). 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 not accept that the hernia claim was "caused" by a pre-existing condition. While we acknowledge that the worker may have had a weak abdominal wall and previous hernia repairs which made him susceptible to further herniations (often referred to as a "thin skull"), there was clearly an acute incident at work which caused him to suffer the abdominal injury on October 23, 2010. It cannot be said that the worker's claim was primarily caused by the pre-existing condition or propensity. It was the job duties of lifting a heavy patient which caused the claim to be made.

With respect to the assertion that the claim was significantly prolonged by a pre-existing condition, we find that there is not enough evidence to support this position. In the panel's view, to the extent that there was any delay in being scheduled for a hernia operation, such delay was attributable to the availability of the surgeon, rather than to a pre-existing condition. With respect to the employer's submission that the worker's diabetes and/or obesity caused delay, the panel did not find any medical opinion on file which attributed any delay in the initial surgery to either of these conditions.

With respect to any delay arising after the initial surgery, for the reasons outlined below, the panel is of the view that this period of time is more properly dealt with under subsection 3(a)(iii) of the Policy.

Accordingly, the panel finds that the worker’s claim was neither caused by a pre-existing condition nor was the initial surgery significantly prolonged by a pre-existing condition. It therefore follows that the employer is not entitled to cost relief under subsection 3(a)(i) of the Policy.

Subsection 3(a)(iii)

Although we find that the employer does not qualify for cost relief under subsection 3(a)(i), we find that it is nevertheless entitled to cost relief under subsection 3(a)(iii).

Following the worker's hernia repair surgery of May 26, 2011, he was cleared by his family physician for a return to work with no restrictions on September 29, 2011. Unfortunately, however, by early October, 2011, he was readmitted to hospital for infection in the surgical wound around his umbilicus. So began the long course of treatment for an abdominal wall infectious process and its sequelae, which had still not resolved as at the time of the review. The worker's current treating surgeon has recommended removal of the previously placed incisional hernia repair mesh, but this procedure is on hold until the worker stops smoking and loses weight.

In March, 2012, a Healthcare Service Request queried whether or not there was a new diagnosis on file. In response, a March 19, 2012 note by the WCB medical advisor confirmed a likely diagnosis of abdominal wall chronic sinus and abscess formation. The note went on to state: "Despite appropriate care, the persistence and chronicity of the infectious process would likely indicate infection of the mesh placed at the recurrent incisional hernia repair of May 26, 2011 … The abdominal wall chronic sinus and abscess formation has likely arisen out of the May 26, 2011 surgical repair of (the worker's) recurrent incisional hernia."

Based on the foregoing, the panel finds that the infectious process is a new diagnosis which constitutes a further injury subsequent to the compensable hernia. The new diagnosis arose out of the delivery of treatment for the original compensable injury. As such, we find that the employer is entitled to cost relief under subsection 3(a)(iii) of the Policy for the additional costs attributable to the further injury. In the panel's opinion, the costs incurred subsequent to the September 29, 2011 clearance for return to full duties ought to be considered costs attributable to the further injury.

The panel therefore finds that the employer is entitled to cost relief. The employer's appeal is allowed.

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 September, 2012

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