Decision #37/13 - Type: Workers Compensation

Preamble

This appeal deals with a decision made by 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 degenerative back and knee conditions prolonged the duration of the claim. A file review was held on January 21, 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

The worker, a health care aide, suffered an injury at work on June 12, 2011 when her right foot caught in the loop of a laundry bag she was carrying, causing her to twist her back and fall on her knees. The worker was initially diagnosed as suffering from knee and back strain. She was off work for a short period from June 21, 2011 returning to work on July 5, 2011.

An MRI on July 13, 2011 of the worker’s back showed degenerative disc changes. The WCB medical advisor reviewed the MRI findings and mechanism of injury and was of the view that the worker suffered a compensable back strain. In the claim notes of August 23, 2011, the medical advisor writes that:

“…the findings reported on the recently obtained MRI appear to be incidental and not related to the effects of the reported workplace injury of June 12, 2011. This is substantiated by the mechanism of injury (which is consistent with a strain-type injury) and the two physician reports that document full lumbar spine range of motion (which is as well consistent with back strain and not demonstrative of a radiculopathy-type examination pattern). The multi-level degenerative disc changes are therefore considered to represent a pre-existing condition.”

The worker continued to work until on or about September 30, 2011. On that date the worker sought medical treatment for pain and swelling in her right knee. The doctor’s report dated September 30, 2011 indicated that she was not capable of working due to her knee problems and referred the worker for assessment by an orthopaedic surgeon for possible right knee arthroscopy.

The orthopaedic surgeon examined the worker on October 12, 2011. In his reports to the WCB and the referring physician, both dated October 13, 2011, the surgeon notes that the worker advised that when she fell at work she banged her right knee more than her left and has continued to have pain in her right knee as well as in her back since the injury. The surgeon noted that x-rays done on June 21, 2011 showed some patellar osteophytes bilaterally in the knees. Following examination the surgeon was of the view that the worker might have a tear of the medial meniscus in her right knee and arthroscopic surgery was recommended.

An MRI of the worker’s right knee taken on November 14, 2011 confirmed that the worker had a tear of the medial meniscus and a bone edema suggesting contusion in the area adjacent to the meniscal tearing.

A WCB medical advisor was asked to review the file to address the MRI findings of a meniscal tear to the worker’s right knee and whether it was related to the compensable injury or to degenerative joint disease. In an opinion dated November 24, 2011, the WCB medical advisor indicated that the configuration of the tear was consistent with having been caused by either a twisting injury or degeneration, but concluded that on the balance of probabilities, the meniscus tear was related to the degenerative joint disease.

In a letter dated November 28, 2012, the WCB advised the worker that it was not accepting her claim for ongoing back or knee pain. With respect to her back, the WCB advised that the ongoing symptoms were related to her pre-existing degenerative condition and not the compensable injury. With respect to her knee, the WCB advised, based on the WCB medical advisor’s opinion, that her condition was related to pre-existing osteoarthritis.

In a letter dated December 19, 2011, the orthopaedic surgeon wrote to the WCB outlining the reasons why, in his opinion, the worker’s right knee problems were due to the compensable injury and not her pre-existing osteoarthritis, noting as follows:

  • The patient denied that she had any problem with her knee preceding the injury;
  • The x-ray of the bilateral small patellar osteophytes showed only minor degenerative changes and indicated that the joint spaces were preserved. Minor osteophytes of a patella are often associated with the knee being asymptomatic; and
  • The MRI showed a tear of the medial meniscus as well as a bone edema (that the radiologist interpreted as being due to a contusion of the knee), both of which would be consistent with the injury described by the patient.

On December 21, 2011, the WCB medical advisor reviewed the orthopaedic surgeon’s letter and changed his opinion based on the additional clinical details provided. The WCB authorized knee surgery on the basis that the tear to the medial meniscus was related to the June 12, 2011 fall and not to the worker’s pre-existing osteoarthritis.

Surgery to the worker’s knee was initially scheduled for February 1, 2012 but was postponed due to the worker’s cough. The surgery was done on March 26, 2012.

The worker was off work due to her ongoing knee problems for the majority of the period commencing at the end of September 2011 until January 31, 2012. The worker’s treating physician indicated in his report dated January 23, 2012 that the worker was capable of returning to work doing modified duties starting February 2, 2012. When the February 1, 2012 surgery was postponed for non-compensable reasons, wage loss benefits were suspended until the surgery on March 26, 2012.

On January 31, 2012 the WCB case manager asked healthcare services to review the medical information and provide an opinion respecting the relationship of the worker’s knee and ongoing back problems to her compensable injury and the expected recovery time from knee surgery.

On February 5, 2012, the WCB medical advisor provided the following opinions:

  • The mechanism of injury is consistent with the worker having sustained a back strain. The back strain seems to have recovered as there is no longer evidence of a strain. The degenerative back changes shown on the MRI more likely account for the worker’s ongoing back pain;
  • The mechanism of injury is consistent with the worker having sustained a right knee medial meniscus injury. The worker’s knee has not yet recovered and many meniscal injuries will not recover unless surgery is performed. The worker’s ongoing knee problems are still related to the compensable injury.
  • Post operative recovery from knee surgery would be expected in 6 to 8 weeks.

Following knee surgery on March 26, 2012, the worker’s knee continued to improve. The WCB medical advisor reviewed the medical file on May 19, 2012 and noted that the worker’s orthopaedic surgeon indicated that the worker was fit to return to modified duties and would be ready for full duties soon. The WCB medical advisor recommended that restrictions be in place for a couple of weeks that would limit force through the worker’s knee and that activities should gradually be added as tolerated.

The worker entered into a graduated return to work program starting modified duties on May 23, 2012 (with full time hours starting June 18, 2012) and returning to full time regular duties in July 2012. The worker returned to work on or about May 23, 2012 until on or about June 15, 2012. In her return to work journal entry dated June 15, 2012, the worker noted that she could not continue working because of her back pain. When contacted by the WCB case manager, the worker advised that she was unable to return to work primarily due to her back pain.

On July 4, 2012, the WCB medical advisor reviewed the file with respect to the worker’s inability to continue participating in the return to work plan. The medical advisor was of the opinion that the worker’s ongoing back pain was not related to the compensable injury and any ongoing knee pain would be related to the degenerative condition in her knee.

In a letter dated July 19, 2012, the WCB advised the worker that responsibility would not be accepted for wage loss benefits beyond June 16, 2012 on the basis that the worker had recovered from the compensable back strain and knee injury sustained on June 12, 2011.

In response to a request from the employer’s representative for cost relief due to a pre-existing condition, the WCB case manager reviewed the file to determine if cost relief was warranted. In a letter dated July 19, 2012, the WCB advised that cost relief was not applicable on the basis that the worker’s post-surgical knee recovery and graduated return to work were within the range of a reasonable recovery period and the pre-existing condition had not significantly prolonged the recovery.

On August 16, 2012, the employer’s representative appealed the adjudicative decision to Review Office on the basis that the worker’s degenerative back condition had a negative and prolonging effect on her injury.

In a decision dated October 12, 2012, the Review Office confirmed the employer was not entitled to cost relief. Review Office pointed out that the worker missed minimal time at the onset of the claim due to back strain and the WCB did not accept responsibility for any ongoing back problems following that short period. The worker’s subsequent time loss commencing at the end of September 2011 was related to the worker’s compensable right knee difficulties and therefore the claim was not prolonged by the worker’s pre-existing back condition.

With respect to the worker’s recovery from knee surgery, Review Office noted that the WCB medical consultant advised that normal recovery from knee surgery is in the 6 to 8 week range. The surgery was performed on March 26, 2012 and 8 weeks would be up on May 21, 2012. The worker returned to work on May 21, 2012 and partial wage loss benefits were paid based on the return to work schedule to June 2, 2012. Review Office was of the opinion that this time frame was not indicative of a significantly prolonged recovery and therefore concluded that the employer was not entitled to cost relief.

On October 22, 2012, the employer’s representative appealed the Review Office decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission is bound by The Workers Compensation Act (the “Act”) and Regulations and the policies of the Board of Directors. The Act provides for cost relief/cost transfer in a number of circumstances and establishes a fund to apportion certain pooled costs among employers. This appeal deals with cost relief in the case of a worker with a pre-existing condition. Subsection 81(1)(c)(i) of the Act refers to the creation of a fund sufficient to meet the part of the cost of claims of workers that results from pre-existing or underlying conditions.

Section 3(a)(i) of WCB Policy 31.05.10 Cost Relief/Cost Transfers (the “Policy”) provides that cost relief is available to eligible employers when “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:

· When the prior condition is determined to be the primary cause of the accident, for example, epilepsy.

· When 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’s representative filed a written submission dated November 20, 2012 for consideration by the panel. In the submission, the representative argued that the worker’s multiple pre-existing degenerative back conditions prolonged the worker’s recovery. In addition, the representative argued that the worker’s pre-existing osteoarthritis in her knees prolonged the expected recovery time from knee surgery. The representative noted that benefits after surgery were paid from March 26, 2012 until June 16, 2012, which exceeded the 6 to 8 week expected recovery time.

Analysis

The evidence in this case establishes that the worker has both a pre-existing degenerative back condition and pre-existing osteoarthritis in her knees. The employer is requesting cost relief on the basis that these pre-existing conditions negatively impacted and 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.

In order to determine this appeal, it is important to look at the specific injuries that were accepted by the WCB as compensable and the related periods for which benefits were paid.

The worker was initially diagnosed as having suffered from a back strain when she twisted her back and fell at work on June 12, 2011. The WCB medical advisor was of the opinion that, following his review of the MRI findings, the mechanism of injury and the physician reports, the worker’s back injury was not related to her pre-existing degenerative back condition, but rather was caused by a strain to her back when she twisted and fell. The pre-existing degenerative back condition was not the cause of the worker’s June 12, 2011 back injury. The worker was off work from June 21, 2011 until July 4, 2011.

The WCB accepted the diagnosis of a back strain as the cause of the worker’s injury and the worker’s claim for benefits was allowed for the short period of time (June 21, 2011 to July 4, 2011) normally expected for recovery from a back strain. The WCB did not accept responsibility for any ongoing back pain or difficulties subsequent to this initial period of recovery from the back strain. The pre-existing degenerative back condition did not impact or prolong the worker’s claim.

The worker returned to work after recovering from her back strain on July 5, 2011 and continued working until the end of September 2011 when she sought treatment for pain and swelling in her knee on September 30, 2011. At that time, her physician was of the opinion that she was not capable of working due to her knee and, suspecting a meniscal tear, referred her to an orthopaedic surgeon.

Following further medical investigations it was ultimately determined by the orthopaedic surgeon and the WCB medical advisor that the worker had suffered a meniscal tear and bone edema in her right knee, which was attributed to the compensable injury that occurred on June 12, 2011. The worker was unable to return to work during the majority of the period from the end of September 2011 until February 1, 2012, during which period time loss and benefits were paid by the WCB. The WCB medical advisor was of the opinion that during this period the worker’s ongoing knee problems were still related to the compensable injury and that her condition would not likely improve until surgery was performed to repair the meniscal tear.

The worker was off work and receiving benefits during the period from September 2011 to February 1, 2012 as a result of her compensable knee condition, namely the meniscal tear, and not as a result of her pre-existing degenerative back or osteoarthritis in her knee. Therefore, the panel finds that the worker’s claim was not impacted or prolonged by any of her pre-existing back or knee conditions during this period.

The WCB stopped paying benefits from February 2, 2012 until the knee surgery on March 26, 2012. Benefits were re-instated on March 26, 2012 and continued until on or about June 16, 2012. During this period, the medical evidence indicates that the worker’s knee continued to improve and the worker returned to work on or about May 23, 2012 commencing a graduated return to work on modified duties on May 23, 2012 (with full time hours starting June 18, 2012) and returning to full time regular duties in July 2012.

The WCB medical advisor had opined that recovery from surgery is expected within 6 to 8 weeks. The medical advisor noted on May 19, 2012 that the worker had been cleared to return to modified duties and recommended restrictions be in place for a couple of weeks. The worker returned to work on or about May 23, 2012, which is 8 weeks from surgery. She participated in modified duties gradually increasing her hours over the next 23 days until she stopped working on June 16, 2012 due to back pain. The WCB did not accept the claim for benefits following June 16, 2012 on the basis that the worker’s compensable back strain had recovered and any ongoing pain was more likely due to her pre-existing non-compensable back condition.

The issue that the panel must decide is whether this period, from March 26, 2012 to June 16, 2012, represents a significant prolongation of the worker’s claim due to her pre-existing back or knee condition. Neither the Act nor the WCB policies provide a definition or guidelines on what constitutes a “significant prolongation.” The panel is of the view that it must look at all of the facts, including the mechanism and nature of the injury, the nature of the pre-existing conditions, the normal recovery periods expected, and the worker’s progress in order to determine whether in any particular case, the worker’s claim was significantly prolonged.

In the case at hand, the worker returned to work within the normal range of 6 to 8 weeks recovery time noted by the WCB medical advisor. While the worker did not return to full duties on May 23, 2012, the medical advisor had indicated that modified duties for a couple weeks would be expected and during the next 23 days the worker increased her hours as contemplated in the return to work plan. The worker returned to work at the 8 week mark and was in modified duties for just over three weeks rather than the couple weeks indicated by the medical advisor. The additional 8 to 9 days that the worker remained in modified duties would, given that predictions are based on the average or majority of cases, be within a reasonable range of recovery from knee surgery to the medial meniscus.

The panel is therefore of the view that the worker’s claim during the period from March 26, 2012 to June 16, 2012 was not significantly prolonged by the worker’s pre-existing back or knee conditions.

The panel has therefore concluded that the evidence in this case establishes, on a balance of probabilities, the worker’s claim was not significantly prolonged by her pre-existing conditions. The employer is not entitled to cost relief and the appeal for cost relief is dismissed.

Panel Members

M. Thow, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

M. Thow - Presiding Officer

Signed at Winnipeg this 20th day of March, 2013

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