The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that it was not entitled to cost relief as there was no evidence to support that a pre-existing condition had significantly prolonged the worker's recovery from an accident on July 22, 2012 affecting his lower back.

On July 5, 2012, the employer appealed Review Office's decision to the Appeal Commission and a file review was held on October 1, 2012 to consider the matter.

Prior to rendering a decision on the issue of cost relief, the appeal panel requested and obtained a copy of the worker's prior claims with the WCB related to his lower back as noted in the WCB call-in examination of December 22, 2010.

Copies of these files were then forwarded to the employer's representative for comment. On October 19, 2012, the panel met further to discuss the case and considered a submission from the employer dated October 17, 2012.

The employer was represented by a consultant. The worker did not participate in this appeal.

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 filed a claim with the WCB for a lower back injury that occurred on July 22, 2010 when he stepped out of a truck on to the side step and slipped on to the next step. The claim for compensation was accepted by the WCB and wage loss and other benefits were paid to the worker. The compensable diagnosis was lumbar radiculopathy.

WCB Case Manager’s Decision Regarding Cost Relief

On April 5, 2011, the employer asked the WCB to provide it with cost relief as it was their opinion that pre-existing issues were delaying the worker's recovery. The employer made note that the worker had several previous issues with his lower back, prior to his being hired by the employer.

In a decision dated April 5, 2011, a WCB case manager advised the employer that cost relief would not be granted as there was no information to support that the worker had a pre-existing condition which had delayed recovery from his compensable injury. The basis for the decision was that the WCB’s examination of the worker December 22, 2010 did not show that the worker had a pre-existing injury condition that delayed his recovery from the compensable injury and that the period of disability had not exceeded 12 weeks.

Review Office Decision Regarding Cost Relief

On January 27, 2012, the employer appealed the April 5, 2011 decision to Review Office. The employer’s position was that there was overwhelming medical evidence that clearly demonstrated that the worker had a major pre-existing injury which has dramatically prolonged his recovery from his injury. In support of its position, the employer referred to MRI results of the worker's lower back on August 24, 2010 and July 23, 2011. In addition, the employer referred to progress notes prepared by the worker's attending physician dated October 4, 2010 and April 15, 2011 and a Pan Am Clinic Face Sheet dated August 23, 2011.

On March 14, 2012, Review Office determined that the employer was not entitled to cost relief. Review Office was of the view that the majority if not all costs of the claim were specific to the injury sustained by the worker on July 22, 2010 and that there was no evidence to support that a pre-existing condition had significantly prolonged recovery from the work injury.

In making its determination that there was no evidence to show that the injury was caused by a pre-existing condition, but was rather due to the accident effects as described by the worker in his application and clarified in a WCB examination, Review Office referred to the following to support its decision:

i. The worker had three prior WCB back claims and a full recovery was noted on each claim as was reported at the December 22, 2010 WCB examination;

ii. The comments made by the WCB medical advisor on December 22, 2010 that based on the results of the August 24, 2010 lumbar spine MRI report, there do not appear to be any pre-existing changes that are affecting recovery;

iii. The comments made by the WCB medical advisor on January 31, 2012 that the current presentation appears to be consistent with an ongoing left lower lumbar radiculopathic progress;

iv. Although the imaging reports showed some pathology (either degenerative changes or other pathology), this was not evidence that any of it had factored into or significantly impacted the worker's recovery from the compensable injury or that it was significantly impacting the duration and/or costs of the claim; and,

v. The August 23, 2011 Pan Am Clinic Face Sheet information was not reflective of a pre-existing condition and its effects on the compensable injury. The report referred to an exacerbation that was caused by stretching exercises for the worker's compensable injury. The chronic pain referred to in the report was about the pain that arose and continued from the effects of the compensable injury. In that regard, Review Office noted that the diagnostic impression of an acute bulging disc issue - is the compensable injury itself.

Reasons

The Notice of Appeal form filed on behalf of the employer simply asks for the denial of cost relief on behalf of the Review Office decision to be appealed. The panel assumes that the employer continues to rely upon the arguments put forward to the Review Office.

Analysis

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. That is, 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 has reviewed the history of the worker’s course of treatment, the past claims documents and the documents relied upon by the employer before the Review Office. Based on the foregoing, the panel is of the view that cost relief is not available to the employer under subsection 3(a)(i) of the Cost Relief Policy. Indeed, 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. In particular, the panel notes that each of the worker's prior back injuries were minor in nature and had no neurological involvements, but rather involved sprain/strain type injuries from which full recovery would be expected to (and did) occur. As well, one of the prior claims involved an accident with the current employer, which, by policy cannot be considered to have caused a pre-existing (i.e. non-compensable) condition with respect to this issue of cost relief with the same employer.

In contrast, the worker in this case suffered an acute injury to his disc with a diagnosed radiculopathy, and a further injury while performing a stretching exercise recommended by his physiotherapist. The panel finds that although there are degenerative changes noted in prior radiological studies, the medical evidence does not support that these findings have materially affected either the cause of the workplace injury or the duration of the claim.

The employer’s appeal is dismissed.

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

C. Monnin - Presiding Officer

Signed at Winnipeg this 27th day of November, 2012