Decision #49/13 - Type: Workers Compensation
Preamble
The employer is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the employer was not entitled to cost relief, as the time loss on the claim did not meet the criteria set out in WCB Policy 31.05.10, Cost Relief/Cost Transfer. A file review was held on February 12, 2013 to consider the matter.
Issue
Whether or not the employer is entitled to cost relief.
Decision
That the employer is entitled to cost relief.
Decision: Unanimous
Background
The worker filed a claim with the WCB for neck, shoulder, back and finger problems that developed on the morning of May 25, 2011 which she attributed to standing and doing compressions during a CPR training course the day before. The claim for compensation was originally denied by primary adjudication on the basis that a workplace accident had not been established. The decision to deny the claim was later overturned by Review Office on August 21, 2012. In a letter to the worker dated August 22, 2012, Review Office stated:
"…the claim is accepted under the philosophy of a temporary strain scenario, superimposed on a pre-existing degenerative cervical spine condition. Thus it is deemed that your involvement in the CPR course on May 25, 2011 led to an aggravation of your degenerative cervical spine condition."
A WCB sports medicine advisor reviewed the file on August 31, 2012 to comment on the typical recovery period for an aggravation/strain to the worker's neck due to her compensable injury. He stated:
"If the accepted strain occurring in the environment of pre-existing degenerative cervical spinal changes is adjudicated to be independent of the right C7 radicular process, then the natural history of the strain injury is anticipation for functional improvement 12 weeks or less.
If the accepted strain occurring in the environment of pre-existing degenerative cervical spinal changes is adjudicated as being a relationship to the right C7 radicular process, then the natural history of same is anticipation for functional improvement in several weeks to months."
On September 12, 2012, Review Office, responding to a request from the WCB case manager clarified its decision of August 21, 2012 by stating:
"The degenerative disc disease (DDD) and disc bulging are considered pre-existing conditions and are not caused by the worker's May 25/12 (sic) injury….RO has accepted an aggravation of the worker's pre-existing degenerative cervical spine condition.
Were it not for the pre-x DDD, the worker would not have had the radiculopathy. Medical literature indicates these 2 conditions are linked. Radiculopathy is the symptomatology that arises from the spine. By virtue of the Review Office acceptance of an aggravation of the worker's pre-existing DDD, the radicular symptoms are also accepted as part of the aggravation."
In a further note to file dated September 14, 2012, the WCB sports medicine advisor stated:
"The normal recovery time for a cervical strain is within 2-6 weeks. Given the pre-existing degenerative changes in the cervical spine, recovery time is anticipated to be extended up to 12 weeks."
In a letter dated September 14, 2012, the WCB case manager advised the worker that she was entitled to wage loss benefits covering the period May 26, 2011 to August 18, 2011 inclusive and final in relation to her compensable injury.
On September 24, 2012, a WCB case manager responded to the employer's request for cost relief. The adjudicator referred to WCB Policy 31.05.10 Schedule A which provides that "claims may be reviewed for cost relief 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 consideration to such claims involving a pre-existing condition only when time loss exceeds 12 weeks." The case manager indicated that in the worker's case, the claim was accepted for a total of 12 weeks only and therefore cost relief did not apply. This decision was again confirmed to the employer on October 29, 2012.
On October 30, 2012, the advocate appealed the WCB's decision to deny cost relief. The advocate noted that the worker remained on modified/restricted duties for several weeks after the 12 week point of the claim. His position was that the WCB's cost relief policy allowed for the granting of employer cost relief when the combined time loss and restricted duty period was beyond 12 weeks which was the case in this claim. The advocate stated that the worker's pre-existing conditions had a negative impact on the work injury. There was no significant accident mechanism. He said it was self-evident that the time loss (even at 12 weeks) was greatly prolonged by the pre-existing conditions, and it was questionable whether the injury would have occurred at all and the disability would not have lasted even 12 weeks. He said the adjudicator could have accepted responsibility for 12 weeks plus 1 day, in which case cost relief almost certainly would have been granted. The decision to end responsibility exactly at the 12 week mark was arbitrary.
On November 29, 2012, Review Office determined that the time loss on the claim did not meet the criteria set out in WCB Policy 31.05.10, Cost Relief/Cost Transfer. Review Office did note that wage loss benefits were approved for technically 12 weeks plus one day. However, this was somewhat of an irrelevant point, as the time loss must have been "significantly" prolonged by the pre existing condition for the employer to be considered eligible for cost relief. Review Office felt that 12 weeks of wage loss benefits for a strain condition was not considered a significant prolongation of recovery time. To consider time loss as "significantly prolonged," Review Office felt the time loss should be in excess of double the recovery norm for any given injury. This had not occurred. On November 29, 2012, the advocate appealed Review Office's 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 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. Guidelines related to return-to-work programs included in Schedule A note in part: The WCB will consider "time loss" to include absences from regular job duties or time worked during modified or alternate work programs.
Worker's Position
The worker did not participate in this appeal.
Employer’s Position:
The employer was represented by an advocate who provided a written submission on behalf of the employer. He noted the well-documented degenerative disease in the worker's cervical spine column and that it "had a negative impact on her work injury. The fact that there was no significant accident mechanism speaks to this." He suggests that the time loss, even at 12 weeks is evidence that the claim was greatly prolonged by the pre-existing conditions.
A considerable portion of the submission dealt with a policy interpretation argument, that 12 weeks recovery time (from any injury) is considered to be lengthy, and that the selection of 12 weeks as the qualifying time period for cost relief is not arbitrary but an indication of a significantly prolonged claim.
Analysis:
The employer has requested 50% cost relief on this claim, 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 significantly prolonged by a pre-existing condition. In making that finding, the evidence must, on a balance of probabilities, meet the criteria set out in Schedule A to the Policy. On the facts of this case, the panel was able to make this finding.
The first criterion to be addressed is whether the worker had a pre-existing condition. In this regard, the panel notes that this claim was ultimately accepted by Review Office, in its decision of August 21, 2012, as an aggravation of a pre-existing condition, described as "a temporary strain scenario, superimposed on a pre-existing degenerative cervical spine condition. Thus it is deemed that your involvement in the CPR course on May 25, 2011 led to an aggravation of your degenerative cervical spine condition." This is the current WCB adjudication as to the worker's diagnosis and has not been appealed. As such, the panel accepts that there is a pre-existing degenerative condition which has had a role in this claim.
There is one other qualifying criterion for access to this policy, namely whether the claim reached 12 weeks in length. The panel finds that the worker's wage loss and subsequent modified duties accommodation at her workplace extended beyond the required 12 week claim period, and that this criterion has been met.
The remaining criterion for the panel to consider is the question of whether the worker’s claim was significantly prolonged by the pre-existing condition. Neither the Act nor the WCB policies provide a definition or guidelines on what constitutes "significantly prolonged." In this case both the advocate and the Review Office suggest different criteria for determining when a claim should be considered significantly prolonged by the pre-existing condition.
With respect to the meaning of "significantly prolonged," the advocate takes the position that the policy set out in Schedule A indicating that the employer will receive 50% cost relief for claims involving a pre-existing condition "when time loss exceeds 12 weeks" signifies that 12 weeks is "a good benchmark to determine whether an injured worker's recovery has been delayed." The advocate is of the view that in most circumstances 12 weeks or more should be considered a significantly prolonged recovery.
Review Office also considered the meaning of "significantly prolonged" and suggested that in order to consider the time loss as significantly prolonged, the time loss "would be expected to be in excess of double the recovery norm for any given injury."
The panel respectfully disagrees with both of these approaches in determining what will be considered "significantly prolonged." First, the panel is of the view that the 12 week mark was not intended to be indicative of the amount of time loss that generally would be considered a long or delayed recovery in many circumstances. Rather, it simply refers to a "trigger date" in a claim, where a claim is flagged, for administration purposes, for an examination of the presence of a pre-existing condition and the relationship between the condition and the compensable injury for the purpose of cost relief. Similar provisions exist in other WCB policies such as the triggering of a review/recalculation of pre-accident earnings at the 12 week mark of the claim. The 12 week mark was not meant as a benchmark for when most claims would be considered significantly prolonged by the pre-existing condition. Stated differently, a long claim is not the same as a significantly prolonged claim. In some cases, an extended period beyond 12 weeks will not amount to a significant prolongation and in other cases shorter periods of time may amount to a significant prolongation depending on the nature of the injury and its interaction with the pre-existing condition.
The panel also disagrees with Review Office's suggestion that there must be at least a doubling of the expected recovery time in order for time loss to be considered significantly prolonged. In the panel's view, the policy does not provide a set formula based on normal recovery times that must be applied in order to determine whether or not the worker's claim has been significantly prolonged by the pre-existing condition.
The panel is of the view that what will amount to a significant prolongation of a worker's claim by the pre-existing condition, will vary based on the specific circumstances of each claim. In determining what will constitute a significant prolongation, the WCB must look at all of the facts-including the mechanism and nature of the original workplace injury, the nature of the pre-existing conditions, the relationship or interaction between the pre-existing condition and the compensable injury, the generally expected ranges of recovery periods for the compensable injury (with and without the presence of the pre-existing condition), and the worker's progress/recovery post-injury -- in order to determine whether the worker's claim was significantly prolonged.
In this case, the worker's injury resulted from a relatively benign mechanism of injury -- leaning over to do compressions for a few minutes on a training dummy during a CPR class. There was no whiplash type of movement and, in the panel's view, this mechanism of injury would be anticipated to result in a minor strain that might be expected to resolve with rest or physiotherapy, and little or no time loss, in the absence of any pre-existing degenerative conditions in the worker's cervical spine. This is confirmed by a WCB sports medicine consultant who notes, in a memo to file dated September 14, 2012 that "the normal recovery time for a cervical strain is within 2-6 weeks. Given the pre-existing degenerative changes in the cervical spine, recovery time is anticipated to be extended up to 12 weeks."
The evidence discloses that the worker in this case in fact had an extended recovery from her workplace injury including time loss of 12 weeks, followed by a period of modified duties on her return to work. Again, the delay in the worker's functional recovery is acknowledged by the WCB sports medicine consultant in a memo to file dated August 31, 2012, which states that:
If the accepted strain occurring in the environment of pre-existing degenerative cervical spinal changes is adjudicated as being a relationship to the right C7 radicular process, then the natural history of same is anticipation for functional improvement in several weeks to months.
Based on the evidence relating to the mechanism of injury and the medical opinions indicating the significant impact that the pre-existing condition had on the worker's recovery, the panel finds, on a balance of probabilities, that the worker's claim was significantly prolonged by the interaction between the worker's compensable strain injury and the underlying pre-existing degenerative conditions in her cervical spine. A strain that would have been expected to fully resolve within 2-6 weeks was significantly prolonged as a result of the worker's pre-existing degenerative condition.
Based on our analysis, the panel finds that the criteria under the Policy have been met. The employer's appeal for 50% cost relief is accepted.
Panel Members
M. Thow, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
M. Thow - Presiding Officer
Signed at Winnipeg this 9th day of April, 2013