Decision #22/13 - Type: Workers Compensation

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. The employer's position is that the worker's minor back strain was prolonged by a pre-existing condition and that the employer should be eligible for 50% cost relief. A file review was held on January 24, 2013 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 April 26, 2012, the worker filed a claim with the WCB for low back pain that occurred on April 22, 2012 during the course of his employment as a dietary aide. The diagnosis reported by the treating physician was a musculoskeletal injury and the worker was treated with medication and physiotherapy. Records showed that the worker had a history of back pain and that an MRI assessment revealed multiple disc protrusions.

On July 6, 2012, a WCB medical advisor reviewed the claim and provided the following opinion to a WCB case manager:

  • the initial diagnosis was a non-specific low back pain with no ominous/neurogenic features sometimes referred to as a low back strain/strain or mechanical back pain.
  • the natural history of this diagnosis is complete functional recovery.
  • the current diagnosis continued to be a non-specific low back pain with no ominous/neurogenic features.
  • the diagnosis would be medically accounted for on a temporal basis in relation to the workplace injury.
  • recovery appeared to be outside of the typical norm insofar as symptoms persist at nearly 11 weeks post injury.
  • recommended treatment would be reintroduction into the workplace environment and continued core stabilization exercises.

In a decision dated August 8, 2012, the worker was advised that wage loss benefits would end on August 14, 2012 as it was determined that he had recovered from the workplace injury of April 22, 2012 and any residual symptoms were related to the pre-existing condition.

On August 29, 2012, a WCB medical advisor was asked to comment on whether or not the recovery of the compensable injury was within a normal recovery range noting that the claim took 16 weeks to resolve. The medical advisor's reply on September 6, 2012 was: "The recovery was mildly prolonged for a strain. Underlying thoracic (lower) and lumbar degenerative disc disease, on balance, affected the recovery time."

On September 7, 2012, the WCB advised the employer that there was no basis for cost relief as it was felt that the worker's pre-existing condition did not significantly prolong his recovery. On October 2, 2012, the employer's representative appealed the decision to Review Office. The representative outlined the position that on a balance of probabilities, the worker's minor back strain was prolonged by the pre-existing degenerative condition and that the employer should be eligible for 50% cost relief.

In a decision dated November 21, 2012, Review Office determined that the employer was not entitled to 50% cost relief. Review Office confirmed that the worker's time loss exceeded 12 weeks based on the WCB's policy related to cost relief but also found that the worker's claim was not "significantly prolonged by the pre-existing condition". Review Office accepted the opinion provided by the WCB medical advisor outlined on September 6, 2012. On November 21, 2012, the employer's representative 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.

The Act provides for cost relief/cost transfer in a number of circumstances. This appeal deals with the employer's request for 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, Cost Relief/Cost Transfer ("the Policy").

Subsection 3(a) of 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 the appeal.

Employer's Position

The employer was represented by an advocate who provided a written submission to the Appeal Commission. He submitted the employer is eligible for 50% cost relief for the injury.

The employer representative noted that the facts are not in dispute. He identified the facts as:

  • The worker did not have any specific accident or incident at work. The claim was accepted on a non-specific accident basis.
  • The worker was originally diagnosed with a back strain
  • The worker has a pre-existing degenerative back condition.
  • The worker's recovery time from the injury was over the minimum set out in the policy. The claim lasted 16 weeks and 2 days.
  • WCB medical advisor and case manager accept that the worker's recovery from the workplace injury was prolonged by the pre-existing condition.

The representative said the evidence demonstrates that the worker's recovery was significantly longer than would be expected in light of the lack of an accident mechanism. The representative submitted that the recovery norm for a typical sprain/strain is 6 to 8 weeks. He submitted that the 12 week benchmark indicated in the Policy equates to prolonged recovery and that the worker took over 16 weeks to recover from a minor injury. He argued that a basic minor strain injury, with no significant accident mechanism, would certainly be considered to be a minor injury, "…so one would assume that the 12 week benchmark as noted in the WCB's cost relief policy constitutes a significantly prolonged recovery period."

The representative suggested that the reference to "mildly prolonged" by a WCB medical advisor was subjective and open to different interpretations. The representative found the comments of the first WCB medical advisor supported the employer's position. The medical advisor commented that "Recovery appears to be outside the typical norm insofar as symptoms persisted at nearly 11 weeks post injury."

Analysis

The panel notes that the employer did not advance the position that the worker's injury was caused by the worker's pre-existing condition and has not asked for 100% cost relief.

The employer requests 50% cost relief based on the assertion that the worker had a pre-existing condition which significantly prolonged the worker's claim. In order for the employer’s appeal to be successful, the panel must find that the worker’s claim was significantly prolonged by the worker's pre-existing condition.

In the present case, the panel is of the view that cost relief is not available to the employer under the Policy. We find that the evidence does not support the position that the worker's pre-existing condition significantly prolonged the worker’s recovery.

It is agreed that the worker had a pre-existing condition. The condition was described by Review Office as "multi-level degenerative changes as noted in an imaging study" and by a WCB medical advisor as "underlying thoracic (lower) and lumbar degenerative disc disease".

Under the Policy, to be eligible for 50% cost relief, time loss on the claim must exceed 12 weeks. The panel acknowledges that this eligibility requirement has been met.

The final requirement to be eligible for 50% cost relief is that the "claim is significantly prolonged by the pre-existing condition". The phrase "significantly prolonged" is not defined in the Policy. The panel considers whether a claim has been “significantly prolonged” by a pre-existing condition is dependent on the facts of each case. Recovery norms are useful indicators but are only part of the evidence that must be considered in addressing this issue. It must be remembered that a norm is simply an average, and cases will often fall beyond the norm.

In considering the facts of this case, the panel notes that the worker commenced a graduated return to work on May 14, 2012, approximately 3 weeks after the injury and the claim was terminated approximately 16 weeks after the injury. This duration is close to the norms that are often cited for back strains and sprains.

The panel notes that the worker was referred to physiotherapy and some treatments were delayed due to scheduling issues. As well there were communication difficulties with the worker. These factors have also affected the length of the claim.

The panel notes that a WCB medical advisor was specifically asked whether there was a pre-existing condition which significantly prolonged the claim. She responded that "The recovery was mildly prolonged for a strain. Underlying thoracic (lower) and lumbar degenerative disc disease, on balance, affected the recovery time."

The panel agrees with the medical advisor's comments and finds while the pre-existing condition did affect the claim and recovery, it did not significantly prolong the claim.

Based on the foregoing, the panel finds that the worker’s claim was not 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

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 13th day of February, 2013

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