Decision #128/12 - Type: Workers Compensation

Preamble

This appeal deals with a decision made by Review Office of the Workers Compensation Board ("WCB") that the employer was not entitled to cost relief. It was the employer's position that the worker's pre-existing condition of diabetes and her smoking habits prolonged the duration of the claim. A file review was held on November 7, 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

On January 27, 2009, the worker suffered a compensable injury to her left ankle in a work- related accident. On January 29, 2009, the worker was treated surgically with an open reduction internal fixation.

Ongoing medical records revealed that the worker developed an infection in her left ankle and was prescribed antibiotics. On June 1, 2009, the treating surgeon reported that the worker: "…had a remote open reduction internal fixation of her left ankle fracture which became infected. Due to the inability to rid her of her infection and a chronic wound, it was elected to remove all of her hardware." The worker underwent surgery to remove the hardware in her ankle on June 1, 2009.

On October 14, 2009, the treating surgeon advised the WCB that the worker could start a graduated return to work program and that a follow-up appointment was scheduled in six month's time.

On November 9, 2009, the worker commenced a graduated return to work program and by June 2010, she was working 7 hours per shift although she still complained of left ankle pain.

In a note to file dated June 8, 2010, it was recorded that the worker was diagnosed with type 2 diabetes in January 2010 and she was referred to a specialist who was pleased with her blood sugar levels.

On June 9, 2010, a WCB orthopaedic consultant reviewed the worker's file at the request of the WCB case manager assigned to the claim. The consultant stated that the worker's recovery from the fracture dislocation of the left ankle had been complicated by post-operative infection and that this would lead to an unsatisfactory outcome with post-traumatic arthritis of the ankle joint. He noted that a significant pre-existing diagnosis at the ankle region was not recognized; however, diabetes mellitus increased the risks of operative infection.

Effective January 14, 2011, the worker was taken off work due to a severe swelling in her ankle and she resumed working on January 31, 2011 at four hours per shift.

The worker was seen by a different orthopaedic surgeon on February 16, 2011 who had specialized training in ankle and foot surgeries. He reported that the worker had a positive history of diabetes and was a previous smoker and had an ankle fracture complicated by infection. He reported that the worker's condition was post-traumatic or post-infectious arthritis and there did not appear to be any active infectious process at this time. He stated that the worker would benefit from an AFO. He noted that if a Rockerbottom shoe modification did not provide sufficient relief from pain, the worker would benefit from an arthroscopic ankle fusion.

On March 30, 2011, a WCB orthopaedic consultant opined that the worker's current diagnosis was post-traumatic and post-sepsis arthritis of the left ankle joint and that the diagnosis was related to the workplace injury. He said that pre-existing diabetes was a risk factor for previous surgery with respect to infection, which actually occurred. It was also a risk factor in any possible future surgery such as ankle arthrodesis. Infection was a risk for any individual undergoing ankle/foot surgery, even in the absence of diabetes.

On May 30, 2011, a WCB supervisor reviewed the worker's claim to determine whether 50% cost relief would be awarded to the employer on the basis that a pre-existing condition had significantly contributed to the duration of the claim. He said the known pre-existing condition was the worker's diabetes. After consideration of the opinion expressed by the WCB's Healthcare Services branch and a review of controlled medical studies, he concluded that there was no comprehensive evidence that would lead to a conclusion that the worker's diabetic condition resulted in a post-operative infection and therefore cost relief could not be awarded to the employer. By letter dated May 31, 2011, the employer was advised that they were not entitled to cost relief.

On February 9, 2012, the employer's representative appealed the May 30, 2011 decision to Review Office. The employer's representative submitted that the worker's pre-existing condition of diabetes had significantly prolonged the duration of the claim and that her smoking history had an impact on her recovery from the compensable injury.

On March 28, 2012, Review Office upheld the position that the employer was not entitled to cost relief. Review Office said it did not find the evidence to support that the worker's diabetes was present prior to her compensable injury. It noted that the worker was diagnosed with diabetes one year after her workplace injury and therefore it does not meet the definition of a pre-existing condition. Review Office also pointed out that the worker's smoking habits were a lifestyle choice and that it did not meet the definition of a pre-existing condition. On August 14, 2012, the employer appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy

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".

Schedule "A" provides that 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. In certain cases pre-existing conditions will result in 100% cost relief to the employer; these include cases where the pre-existing condition was the primary cause of the accident or wearing an artificial appliance is determined to be the primary cause of the accident. For other claims involving pre-existing conditions 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 the hearing.

Employer's Position

The employer was represented by an advocate who provided a written submission for consideration by the panel.

The representative stated that the employer believes the worker's pre-existing diabetes condition has contributed to and significantly prolonged the worker's claim, entitling the employer to cost relief under WCB Policy 31.05.10.

The representative noted that on January 29, 2009, the worker "…underwent surgery to repair a displaced medial malleolus fracture of her left ankle. A diabetic, she was at a greater risk for fracture and post surgical complications such as infection and indeed a stubborn infection ensued."

The representative noted that the worker required antibiotics but due to an inability to get rid of the infection, the surgeon decided to remove the hardware installed in her first surgery. The representative also noted that the worker was not ready to start a graduated return to work (GRTW) until November 9, 2009 and that one year after the start of the GRTW, the worker was still working in modified duties, unable to progress beyond seven hours per day.

In support of the employer's position, the representative referenced the following:

  • February 16, 2011 comments from an ankle specialist that the worker has "…a positive history of diabetes, smoking, and an ankle fracture complicated by infection." The physician wrote that she has gone on to post-traumatic or post infections arthritis.
  • June 9, 2010 comment by WCB orthopaedic consultant that recovery had been complicated by post-operative infection which would probably lead to post traumatic arthritis.
  • March 30, 2011 comment from a WCB orthopaedic consultant that diabetes mellitus increases the risk of operative infection.
  • Articles dealing with the increased risk for soft tissue complications for patients with diabetes.
  • A website which suggests that studies show patients with diabetes have a higher risk of postoperative wound infections and slow healing compared to individuals without diabetes.

The representative also disagreed with the Review Office's determination that the worker's diabetes was not a pre-existing condition.

Analysis

As a starting point, the panel notes that the employer has not suggested that the worker's pre-existing condition caused the injury. Rather, the employer requests cost relief on the basis that the worker's pre-existing condition contributed to and significantly prolonged her claim. In order for the employer’s appeal to be successful, the panel must find that the worker’s claim was significantly prolonged by her pre-existing condition.

We find, on a balance of probabilities, that the evidence does not support the employer's position that the worker's diabetes condition significantly prolonged the worker’s recovery. Accordingly, the employer is not eligible for cost relief under subsection 3(a)(i) of the Policy.

The panel notes that the worker developed an infection after the January 29, 2009 surgery. With respect to the infection, the panel has considered all the evidence and finds that the evidence does not establish, on a balance of probabilities, that the worker's diabetes did contribute to the infection or prolonged the worker's recovery. The evidence on file is that diabetes can be a risk factor for a post-operative infection and delayed recovery. This possibility does not meet the legal test of balance of probabilities which is the standard that WCB decisions must meet.

In reaching this decision, the panel notes that the WCB orthopaedic consultant provided the following opinion on the effect of the diabetes in this case. He wrote that:

"Pre-existing diabetes was a risk factor for previous surgery with respect to infection, which did actually occur. It is also a risk factor in any possible future surgery such as ankle arthrodesis. Infection is a risk for any individual undergoing ankle/foot surgery, even in the absence of diabetes."

The panel finds that this opinion recognizes the possibility that the worker's diabetes could contribute to the infection and duration of recovery but is not evidence that it contributed to the infection or duration. In fact, the opinion recognizes that infection is a risk factor for anyone undergoing ankle/foot surgery. The panel considered the literature referenced by the employer and finds that it is not evidence that a relationship exists in this case.

The panel notes that the worker had subsequent surgery to fuse her ankle which occurred without any infection and appears to have been successful, notwithstanding that the risk factors (diabetes and smoking) were present. Four months after the surgery, the surgeon has reported that the fracture looks as though it has consolidated. The panel finds this supports its decision that the evidence does not demonstrate a relationship between the pre-existing diabetes condition and the worker's infection and recovery.

While there is some reference to the relationship between smoking and delayed recovery on file, the panel finds the evidence does not, on a balance of probabilities, establish that the worker's cigarette smoking contributed to the infection and recovery.

The employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 21st day of November, 2012

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