The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer disagrees with the decision made by the Workers Compensation Board ("WCB") that it was not entitled to cost relief. A file review was held on April 16, 2014 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 filed a claim with the WCB when she slipped and fell on a wet floor at work on August 10, 2011. The worker reported that she struck her head on the metal of a door and fell onto her right side. The worker reported injuries to her head, neck, back, ribs, right arm and hip.

The worker's claim was accepted and benefits and services were paid. The compensable diagnosis was soft tissue injury to the neck, upper and low back.

On March 18, 2012, a WCB medical advisor responded as follows to questions posed by the WCB case manager:

• the initial diagnosis of August 10, 2011 based on the early medical reports were consistent with strains/contusions to the neck, chest, hip and low back. Some would also call this non-specific cervical, chest and low back/hip pain. There was some report of pain to the right arm, but initially it was not clear if this was radicular pain from the neck or arm pain.

• the worker mainly complains of neck pain. A CT had been done which showed some degenerative changes. This was considered a new diagnosis since it was not apparent earlier. It was not caused by the workplace accident and it is related to aging of the cervical spine which is very common in a 59 year old person. There was no evidence to support that this was aggravated but it can delay recovery from an injury to the soft tissues about the neck.

• the worker has tenderness over the occipital areas. This would be a finding of non-specific pain although some will call it occipital neuralgia. It will lead to neck pain and headaches.

• the worker was reported to have improvement in symptoms. A graduated return to work program was started several months after the injury. This was appropriate treatment for her pains. It was expected that as her activity increases, there could be some temporary increase in symptoms. Since there was no evidence of anatomic or structural abnormality related to the workplace accident, we are only dealing with symptoms and no further harm is being done by continuing to participate in full activity (work or at home).

• normal recovery for non-specific pain was variable, depending on the force involved with the mechanism of injury and other factors. The worker had significant force with the slip and fall, so it would not be unexpected for there to be some pain for a few months afterwards. We are now approaching seven months so it is likely that the cervical degeneration is causing a delay in recovery for that area.

• the worker's neck pain was consistent with non-specific pain. There was no evidence that the degenerative changes have been aggravated or enhanced and there was no evidence from the MRI that there are any acute changes related to this injury.

On November 13, 2013, an advocate for the employer wrote the WCB requesting an update of the worker's claim. He also asked whether there was any indication of a pre-existing condition which was impacting the worker's recovery and whether cost relief could be considered.

In a response to the advocate dated November 22, 2013, the WCB case manager stated that the worker was not receiving any active management at this time. She also stated that the worker's claim had been reviewed in its entirety and there were no pre-existing conditions that had significantly prolonged the worker's recovery from the compensable injury and as a result, cost relief was not applicable.

On December 18, 2013, the employer's advocate appealed the November 22, 2013 decision to Review Office. It was the advocate's position that the WCB medical advisor's comments outlined on March 18, 2012 were enough reason to grant employer cost relief on the claim.

On January 30, 2014, Review Office confirmed that the employer was not entitled to cost relief. For cost relief to be applicable, Review Office indicated that there must be an identified pre-existing condition to have delayed the worker's recovery, significantly prolonging its duration. Cost relief could not be considered unless the cumulative time loss on file exceeded 12 weeks. Review Office found that the worker's claim did not meet this criteria. On March 13, 2014, the employer's advocate 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, in part, 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.

...

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.

The employer is seeking 50% cost relief under the above noted policy.

Employer's Position

The employer was represented by an advocate who provided a written submission. The advocate submitted that:

"We disagree with both WCB's decision and the Review Officer's decision...rejecting employer cost relief. We believe that the Review Officer had a much too narrow interpretation of the WCB Medical Advisor's remarks. In his decision letter the Review Officer stated: "The WCB medical advisor noted that degenerative changes "can delay recovery" not that in this case it has of (sic) did delay recovery...

A more reasonable interpretation of the medical advisor's remarks would be that he was offering the opinion that the pre-existing condition could delay recovery. From there one must simply examine whether the claimant's recovery was, in fact delayed. We believe that the evidence clearly indicates that the claimant's recovery from the diagnosed workplace injury was longer than would be expected for such an injury. As such, there is only one possible reason offered for this delay in recovery and that was the claimant's pre-existing condition.

This claimant sustained injuries as a result of her work accident that, ultimately, were diagnosed as only soft tissue injuries in nature. Despite this, the claimant had time loss and physical restrictions for a combined period of 7 months, which is far longer than what would be expected for the injuries sustained...

We still believe that the WCB Medical Advisor's comments, in his memo of March 18, 2012, are, more than enough reason to grant employer cost relief on this claim. Specifically, in point # 5 of his memo he stated: "We are now approaching 7 months, so it is likely that the cervical degeneration is causing a delay in recovery for that area."

The evidence on file indicates that a large facet of the claimant's complaints of pain and symptoms related to her neck region. As such, we believe that, even though the Medical Advisor down played the effects of the claimant's pre-existing degenerative condition upon her other injured body parts, he was definitive is (sic) noting that the pre-existing condition likely prolonged recovery...

In summary, we believe that the evidence indicates that the claimant's pre-existing degenerative condition prolonged her compensable neck injury and the employer should be entitled to cost relief on this claim."

Worker's Position

The worker did not participate in the employer's appeal.

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's request meets the requirements set-out under section 3(a)(i) of the Policy.

The employer requests cost relief on the basis 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. The panel finds that the evidence does not support the position that the worker's pre-existing condition significantly prolonged the worker’s recovery. The panel finds that cost relief is not available to the employer under the Policy.

To access the Policy, there must be a pre-existing condition and time loss on the claim must exceed 12 weeks. The panel acknowledges that these requirements have 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 and is a relative term. Whether a claim has been “significantly prolonged” by a pre-existing condition is dependent on the facts of each case.

The panel notes the following:

· the worker was injured in a fall on August 10, 2011.

· the worker's injury affected multiple sites; according to the Worker Incident Report, the worker injured her head, neck, back, ribs, right arm and hip.

· an October 13, 2011 report from a physician at a sports medicine clinic identifies diagnoses of cervical musculo-ligamentous strain with occipital neuralgia and a lumbar strain.

· a December 22, 2011 report from the treating physician notes objective findings of "tender (+) - ROM - limited-chest wall is tender++."

· a December 15, 2011 report from a neurologist indentifies symptoms of constant headaches with associated nausea and excessive sleepiness, numbness in her left arm but no associated weakness. Tenderness over the greater occipital nerve on both sides was noted. It was proposed that the worker have an occipital nerve block.

· the worker began a graduated return to work on January 3, 2012 and returned to full duties as of January 23, 2012.

· a February 28, 2012 report from the treating physiotherapist notes that in addition to neck pain, the worker complains of pain in the mid back and rib cage which is not related to her neck condition.

The panel has considered the WCB medical advisor's opinion. It notes the medical advisor's comment that "We are now approaching 7 months, so it is likely that the cervical degeneration is causing a delay in recovery for that area." (underlining added) The panel notes there are other areas which were also at play throughout the claim and continued after the worker's return to work. Given the ongoing treatment for the other injury sites, the panel is unable to find, on a balance of probabilities, that the worker's pre-existing cervical degeneration in and of itself significantly prolonged the claim.

Based on the foregoing, the panel finds that the worker’s claim was not significantly prolonged by the pre-existing condition. Accordingly, the employer is not entitled to cost relief under the Policy. The employer's appeal is denied.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 2nd day of May, 2014