The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission is bound by The Workers Compensation Act (the Act) and the policies of the WCB’s Board of Directors. The Act provides for cost relief/cost transfer in a number of circumstances. This appeal deals with cost relief in the case of a worker with a pre-existing condition. Cost relief, in such cases, is provided pursuant to subsection 81(1) of the Act and WCB Policy 31.05.10.

Subsection 3(a) of WCB Policy 31.05.10 (the Policy) provides that:

a) Cost relief is available to eligible employers in the following circumstances:

(i) Where the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition. The cost relief criteria and method of cost allocation are described in Schedule A.

Schedule A provides, in part, that:

When 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 when 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 this appeal.

Employer’s Position:

The employer was represented by an advocate who provided a detailed written submission on behalf of the employer.

In support of the appeal, the advocate noted that the existence of a pre-existing condition does not of itself trigger the granting of cost relief, but that the pre-existing condition must have significantly prolonged the recovery from the workplace injury in order for the Policy to apply. The advocate further noted that cost relief may be granted where time loss exceeds 12 weeks and that in examining the period of time loss, the combined total of the wage loss benefit period and modified duties should be considered.

The advocate stated that “The claimant has a well documented pre-existing degenerative condition at the same site as her work injury and the medical documentation makes it clear that the pre-existing condition has extended her recovery.” The advocate relied upon the WCB’s medical advisor’s May 9, 2012 opinion.

Analysis:

The employer requests cost relief on the basis that the worker had a pre-existing condition which significantly prolonged her claim. 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 a pre-existing condition. In making that finding, the evidence must meet the criteria set out in Schedule A to the Policy.

The first question to determine is whether the worker had a pre-existing condition. The WCB’s medical advisor, in the opinion provided May 9, 2012, stated in response to the question “Is the [worker’s current] diagnosis medically accounted for in relation to the workplace injury?”:

Negative. The current diagnoses relate to the significant previous history of lumbar disc degeneration, disc herniation and two-level laminectomy.

The medical advisor’s opinion has not been challenged and we accept it as evidence that the worker had a pre-existing condition. We note that the initial diagnosis of low back strain was accepted by the WCB as a compensable injury resulting from the workplace accident of September 14, 2011. There is no evidence to suggest that the worker’s claim was caused by the pre-existing condition.

The next question for this panel to determine is whether the worker’s claim was significantly prolonged by the pre-existing condition. We note that the Policy does not specifically define “significantly prolonged.” In the absence of an absolute definition, the panel takes the view that whether or not a claim has been “significantly prolonged” by a pre-existing condition is relative to the facts of the case.

In this case, the worker sustained a relatively minor low back strain as a result of the workplace accident. The medical advisor’s opinion of May 9, 2012 sets out that “Recovery from the low back strain would be expected…within a reasonable range of six to eight weeks.” In answer to the question “Is the recovery of the compensable injury within the normal recovery range at this point?” the medical advisor, in the same opinion, answers “Negative.”

The worker’s injury took place on September 14, 2011 and wage loss benefits were paid through December 25, 2011, more than 14 weeks post-accident. This is 6 to 8 weeks longer than the range proposed by the WCB medical advisor, and, in the panel's view qualifies as a significant prolongation.

The panel notes that ongoing medical investigation of the worker’s pre-existing condition was not concluded until after receipt of both the treating physician and specialist's reports in April 2012, culminating in the review and report by the WCB's medical consultant of May 9, 2012, such that, altogether, the claim was active for in excess of 35 weeks.

Based on the sum of the evidence before us, we find that this worker’s claim was significantly prolonged by the pre-existing condition.

The final hurdle to be met in order to in order for the employer to be eligible for cost relief on the basis that a claim was significantly prolonged by the pre-existing condition is that the time loss must be in excess of 12 weeks. We note that the Policy's administrative guidelines clearly states, as noted by the employer’s advocate, that “time loss” includes “absences from regular job duties or time worked during modified or alternate work programs.” On the basis of the evidence before us, we find that this threshold has been met.