The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") to deny cost relief. A file review was held on April 30, 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

In December 2011, the worker filed a claim with the WCB for injury to her low back and right leg that occurred at work on November 26, 2011. The worker attributed her injury to bending, lifting, turning and repositioning clients.

The worker reported that at about 11:00 p.m. she felt numbness and pain in her legs while at work on November 26, 2011. As her shift was over in 45 minutes, she thought she would continue on, then go home to rest. The next day, the pain was isolated to her right leg. The worker noted that she continued working but had to take analgesics and ice to try to alleviate the pain. She said the pain continued to worsen so she made an appointment to see her physician. Her last day of work was on December 2, 2011.

On December 7, 2011 the treating physician diagnosed the worker with right leg pain and possible L3-4 radiculopathy. The claim for compensation was accepted and benefits were paid to the worker while she attended physiotherapy treatment.

On December 7, 2011 x-rays were taken of the worker's right hip and lumbosacral spine. The right hip showed sclerosis at the right sacroiliac joint and an element of sacroiliitis. The lumbosacral spine showed end plate spurring and intervertebral disc space narrowing at the L1-2 level. Minimal degenerative spurring was noted throughout the lower lumbosacral spine.

In a report by a specialist dated December 12, 2011, it was reported that the worker's physical examination was consistent with a possible right hip pathology or myofascial pain involving the right hip flexors. An MRI of the right hip was recommended.

MRI of the lumbar spine and right hip was performed on January 27, 2012. The lumbar spine showed degenerative changes and a right foraminal disc protrusion at L2-3 which was felt to possibly affect the exiting L3 root. The right hip showed mild degeneration with cystic change within the superior acetabulum. The impression was minimal osteoarthritis of the right hip.

On March 28, 2012, a WCB medical advisor reviewed the file information and outlined the opinion that the current diagnosis of the worker's condition was unclear.

On March 30, 2012, the worker was referred to a neurosurgeon in relation to her right anterior leg symptoms.

A doctor's progress report dated April 4, 2012 indicated a new diagnosis of radicular right leg pain.

The worker commenced a gradual return to work program on April 16, 2012.

A report from a neurosurgeon dated April 24, 2012 indicated: "Pain topography does not follow any obvious radicular pattern nor is the MRI an adequate radiological correlate. I understand that the patient underwent a neuro-physiologic evaluation that was not supportive of a radiculopathy as well." It was recommended that the worker return to a regular physiotherapy program in order to stabilize and recondition the lumbosacral spine and lower extremities.

The worker was referred to a physiotherapy facility for a strengthening program and was cleared to return to full duties as of July 30, 2012.

On August 23, 2012, a WCB medical advisor reviewed the file to determine whether there was a pre-existing condition that was significantly delaying the worker's recovery from the compensable injury. The medical advisor stated:

There are some pre-existing degenerative findings reportedly documented on the December 7, 2011 right hip x-ray and the January 27, 2012 lumbar spine; pelvis and right hip MRIs. As substantiated above, these changes do not appear to account for the worker's presentation and as such, have not likely contributed to the apparently delayed recovery.

On August 27, 2012, the WCB wrote the employer to advise that the worker's file had been reviewed and there was no evidence of a pre-existing condition significantly delaying the worker's recovery and therefore cost relief would not be awarded.

On September 14, 2012, the treating physician indicated that the worker had a significant increase in right leg and low back pain and the worker was advised to take time off work.

On October 2, 2012, the treating physiotherapist advised the WCB that the worker worked her shift on September 24 and was doing well and was feeling better. She had full range of motion with some pain and spasms in the low back. The spasms were more in the low back area than the hip area.

A WCB medical advisor reviewed the file on October 4, 2012. In his opinion, the worker's current presentation was consistent with nonspecific right leg pain. He stated that a structural abnormality in relation to the workplace injury had not been demonstrated.

On October 5, 2012, the employer's representative appealed the acceptance of the worker's claim and the WCB's decision against providing cost relief. The representative outlined the opinion that the worker did not sustain a work-related incident and, at best, may have temporarily aggravated her pre-existing condition. In the event that the claim was still considered compensable, cost relief was requested in accordance with WCB Policy 31.05.10. It was felt that the worker's claim was unquestionably prolonged based on the worker's pre-existing degeneration condition.

On October 10, 2010, the WCB advised the worker that no responsibility would be accepted for wage loss or coverage for medical treatment after October 11, 2012. The adjudicator relied mainly on the WCB medical opinion that there was no structural abnormality in relation to the workplace injury to account for her current complaints.

On November 14, 2012, in response to a question posed by Review Office as to whether a pre-existing condition had materially contributed to a delay in the worker's recovery from the compensable injury, a WCB sports medicine advisor stated:

On review of the medical information on file, pre-existing minor degenerative changes were noted on imaging studies at the right hip, right S1 joint and lumbar spine. The presence of same does not appear to have materially impacted recovery from the nonspecific pain condition at the right leg. This is substantiated by the absence of clinical findings on examinations of the back and right hip to implicating the aforementioned degenerative structures as pain-generators contributing to the current presentation. This opinion remains consistent with the previous medical advisor's opinion of August 23, 2012.

In a decision dated November 16, 2012, Review Office determined that the information on file was sufficient to establish that the worker suffered an accident as defined in The Workers Compensation Act (the "Act") and therefore her claim for compensation was acceptable. It also determined that the evidence on file did not support that the worker's recovery was significantly prolonged by a pre-existing condition based on the WCB medical opinions outlined on August 23, 2012 and November 14, 2012. It therefore concluded that there was no basis to provide the employer with cost relief.

On January 22, 2013, the employer's representative appealed Review Office's decision pertaining to cost relief and a file review was held at the Appeal Commission on April 30, 2013.

Reasons

Applicable legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

WCB Policy 31.05.10 Cost Relief/Cost Transfers (the “Policy”) describes certain specific circumstances when a claim cost may be transferred from an accident employer to a shared cost pool. This process is called “cost relief”. Subsection 3(a) (i) of the Policy provides that cost relief is available to eligible employers: “Where the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition.” The cost relief criteria are described in Schedule "A" as follows:

Where 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 where time loss exceeds 12 weeks, the employer will receive cost relief for 50% of the entire costs of the claim.

Employer’s Position

The employer was represented by an advocate in this appeal. It was submitted that the objective medical evidence confirmed that the worker's difficulties were due to pre-existing degeneration, deconditioning and the pressure of excess weight on the spine. It was noted that although the worker had indicated that on the day of the accident, it was a typical evening shift, both her legs were numb and painful. Later, when participating in a gradual return to work program, the worker had flare-ups of pain without any inciting factor and missed time from work. Flare-ups of pain are indicative of a degenerative condition that worsens with advancing age. Individuals with osteoarthritic degeneration have good periods and bad periods. Flare-ups without any inciting event are a common feature of this condition. Weight loss is recommended to ease added stress to the spine.

The employer disagreed with the opinion of the WCB medical advisor that the pre-existing conditions identified by diagnostic testing and confirmed by the treating neurologist did not cause the worker's symptoms or delay the claim. No specific work related incident occurred to account for the rise of symptoms. No diagnosis was provided and there was no other explanation to account for a very prolonged time loss from work and excessive recovery period.

The worker's symptoms waxed and waned, which was consistent with a degenerative back condition. She had a history of prior back and leg pain dating back to 1998. A normal recovery period for non-specific pain/strain should be four to six weeks. The worker was off work for more than five months even though the employer could accommodate her with modified duties. The employer therefore asked that the panel reverse the WCB's decision to deny the provision of cost relief to the employer.

Analysis:

The issue before the panel is whether or not the employer is entitled to cost relief. In order for the employer’s appeal to be successful, the panel must find that the employer qualifies under section 3(a)(i) of the Policy, i.e. 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.

After considering the employer's submission and the file material as a whole, the panel finds 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.

The worker's claim was accepted based on reports of right leg pain, and an L3-4 radiculopathy was queried. Investigations ultimately ruled out the existence of a radiculopathy and the only diagnosis that the WCB medical advisors were able to identify was non-specific right leg pain. The employer's submission identifies pre-existing osteoarthritic degeneration as one of the causes of the worker's difficulties. The panel notes, however, that the degenerative findings found on imaging are identified in the lower back and hip area, as opposed to the right leg. Further, the osteoarthritis in the right hip is described as minimal. More importantly, however, the panel notes that there is no medical opinion which serves to link the worker's compensable condition or a prolonged recovery to the degenerative changes. In fact, two WCB medical advisors specifically state that the degenerative changes did not likely contribute to the worker's condition as pain generators. In the absence of medical support for the proposition that the pre-existing degenerative conditions contributed to the injury or delayed recovery, there is no basis for granting cost relief to the employer.

With respect to the employer's submission that deconditioning and excess weight were also causes of the worker's difficulties, the panel finds that although the presence of these conditions may be referenced in the medical reports, they do not constitute pre-existing conditions identified by a medical professional as having caused the claim or having significantly prolonged the worker's recovery from the compensable injury.

We therefore find that the employer is not entitled to cost relief under the Policy. The employer's appeal is denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 26th day of June, 2013