The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that they were not entitled to cost relief. A file review was held on May 6, 2014 to consider the issue.

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 for pain she experienced in her shoulders, hands, wrists and fingers during her employment as a housekeeping aide. The date of accident was October 12, 2011. Her claim for compensation was accepted based on the diagnoses of bilateral hand and arm strain, bilateral carpal tunnel syndrome ("CTS") and neck and back pain.

On November 6, 2013, the employer's representative asked the WCB to consider whether there was any indication of a pre-existing condition that had impacted the worker's recovery from her compensable injury and whether cost relief was warranted. In e-mail correspondence to the employer dated November 12, 2013, the WCB case manager indicated that a pre-existing condition was not identified that significantly prolonged the worker's recovery from her compensable injury and that cost relief was not approved on the claim.

After receiving a copy of the worker's file, the employer's representative wrote Review Office on January 22, 2014 and provided the following rationale to support that the employer qualified for cost relief:

Upon reviewing the claim file, it is apparent that, while WCB accepted the claim for multiple injuries including bilateral shoulder strains, neck and back problems, as well as carpal tunnel syndrome (CTS), the decision to deny employer cost relief it (sic) because of the lack of a pre-existing condition affecting the CTS. However, there has certainly been some suggestion that the other (non-CTS) compensable injuries were negatively impacted and prolonged by likely pre-existing degenerative conditions.

In this regard, we would direct you to the WCB Medical Advisor's call-in examination notes dated January 7, 2013. In those notes the Medical Advisor stated:

· "In a 60-year old female, there is also a good likelihood of some degenerative changes in the cervical spine which could be contributing to this pain." He went on to add that this could be confirmed by an x-ray, although it is unclear if that ever took place.

· "It is more likely this represents nonspecific hand pain and possibly some CMC joint OA since she did have pain with compression of that joint, some loss of opposition, and tenderness in the thenar area." He went on to add that an x-ray could confirm this.

· "Prognosis for full recovery is poor based on the worker's presentation, the likely associated degenerative changes in these areas..."

These last remarks from the Medical Advisor are especially relative to our appeal. He used the term 'likely' when describing the pre-existing degenerative changes and he cited that as contributing to her poor progress. We feel that these remarks meet the criteria for the granting of employer cost relief in that, in the absence of x-rays, one must go with the most likely (based upon a balance of probabilities) medical opinion on file and that is the Medical Advisor's opinion that it is "likely that pre-existing degenerative changes have prolonged the claimant's recovery."

In a decision dated March 14, 2014, Review Office confirmed that the employer was not entitled to cost relief as it determined that the test set out in the WCB's cost relief policy had not been met.

On March 14, 2014, the employer's representative filed an appeal with the Appeal Commission regarding Review Office's decision of March 14, 2014. A formal written submission regarding cost relief was submitted to the appeal panel dated April 9, 2014 and a file review was held at the Appeal Commission on May 6, 2014 to consider the matter.

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 policy.

Employer's Position

The employer was represented by an advocate who provided a written submission for the panel's consideration. The employer's representative wrote that:

"We are requesting that the employer be granted 50% cost relief on this claim as per WCB's Cost Relief Policy. We believe that the arguments that we brought forward in our January 22, 2014 submission to Review Office were valid and we believe that the WCB Review Officer did not properly consider them in her decision letter of March 14, 2014..."

In support of the employer's request, the employer representative referred to the employer's January 22, 2014 submission to Review Office which is quoted in the background of this decision. The employer representative relied upon several comments from a WCB medical advisor.

The employer representative submitted that the medical advisor's remarks meet the criteria for the granting of employer cost relief. He submitted that in the absence of x-rays one must go with the most likely medical opinion.

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

To be eligible for cost relief the claim must meet the following conditions:

• time loss must exceed 12 weeks
• the worker must have a pre-existing condition
• the pre-existing condition must have "significantly prolonged" the claim

For the reasons that follow, the panel finds that the claim does not meet the requirements of the policy and the employer is not eligible for cost relief.

The panel has carefully considered the evidence as it relates to the worker's injury. It finds that the injury involved "both shoulders, hands, wrists and fingers" as noted in the Worker Incident Report. The Employer's Accident Report notes that the worker felt pain in her "hands, wrists, arms (lower & upper) & both shoulders." Although the injury involved multiple areas, the panel finds that the majority of medical treatment and the duration of the claim was related to the worker's wrist and the related diagnosis of CTS. In this regard, the panel notes that the most recent medical report on the file received in July 2013 is from a surgeon who proposed further CTS surgery.

The panel also notes that treatment of the worker's shoulder complaints was delayed due to the decision to treat the wrist condition first. The panel finds that this delay is not attributable to a pre-existing condition.

The panel was not able to find that the overall claim has been significantly prolonged due to a pre-existing condition. The panel has considered the comments of the WCB medical advisor referenced in the employer's submission and concludes that the comments do not support a finding that the claim was significantly prolonged by pre-existing conditions.

The WCB medical advisor commented that:

"In a 60 year old female, there is also a good likelihood of some degenerative changes in the cervical spine which could be contributing to this pain... At this time, it would not change management and would not change the relationship of her pain complaints to the compensable injury."

The panel does not interpret the above comment as indicating that a pre-existing condition has significantly prolonged the claim. It is somewhat speculative and provides an explanation for the worker's pain but does not address her functional recovery or claim duration.

The WCB medical advisor also commented that:

"It is more likely this represents nonspecific hand pain and possibly some CMC joint OA since she did have pain with compression of that joint, some loss of opposition, and tenderness in the thenar area...The findings would not change management or the relationship of the pain to the compensable injury since the area could be stressed by her work duties and there is likely a combined effect."

The panel does not interpret the above comment as indicating that a pre-existing condition has significantly prolonged the claim.

The WCB medical advisor also commented that:

"Prognosis is poor for full recovery based on the worker's presentation, the likely associated degenerative changes in these areas, the mood disorder and lack of improvement over the past year plus."

Once again the panel does not interpret this comment as indicating that a pre-existing condition is significantly prolonging the claim. While it speaks of recovery, it does not identify the extent to which degenerative changes are impacting recovery and does not address claim duration.

The employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 20th day of May, 2014