Decision #97/14 - Type: Workers Compensation
Preamble
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's secondary injury did not cause a delay in his recovery and therefore cost relief was not warranted. A file review was held on June 5, 2014 to consider the matter.Issue
Whether or not the employer is entitled to cost relief in regard to the worker's secondary injury.Decision
That the employer is entitled to cost relief in regard to the worker's secondary injury.Decision: Unanimous
Background
On July 7, 2011, the worker was coming down a stairwell when he stumbled and struck his right elbow onto a railing. As a result of the accident, the worker was diagnosed with compensable right olecranon bursitis and ulnar neuropathy, an injury that was surgically treated in November 2012 by cubital tunnel decompression. Post-surgery, the worker began weekly physiotherapy treatment in December 2012.
On February 26, 2013, the worker called the WCB to advise that since his physiotherapy treatment on February 21, 2013, he was experiencing burning and throbbing in his left elbow, tingling in his fingers and difficulty sleeping due to pain. The worker advised the WCB adjudicator: "[The physiotherapist] had him laying on the bed with his right arm outstretched and she wanted to push him to straighten his arm past 10 degrees. The worker told her his arm did not go past 10 degrees but [the physiotherapist] cranked on his arm and held it there and he was in a lot of pain." The physiotherapist the worker saw that date was not his usual treating therapist.
In a report dated March 26, 2013, the worker's treating surgeon noted that the worker's treating physiotherapist forced his elbow into full flexion and full extension and had instructed him to do aggressive activities. Since that time, the worker had recurrent symptoms of ulnar neuropathy with numbness and tingling in the ulnar nerve distribution. Since then, the worker also complained of pain to the base of his right thumb radiating into his elbow. A repeat EMG and nerve conduction studies to assess the ulnar nerve was suggested.
On April 2, 2013, the employer's advocate advised the WCB that he was aware that the worker sustained an injury to his elbow due to a physiotherapy treatment and requested that the employer be granted full cost relief from February 21, 2013 based on the WCB cost relief policy.
On May 1, 2013, a WCB sports medicine consultant gave the opinion that there appeared to have been an aggravation occurring during physiotherapy treatment that delayed recovery of the worker’s compensable elbow condition.
File records showed that the WCB requested and obtained medical information to determine whether an aggravation or secondary injury occurred to the worker during physiotherapy treatment. This included further reports from the treating surgeon as well as nerve conduction studies and EMG reports.
On June 20, 2013, a WCB sports medicine consultant again reviewed the medical reports and opined that there was no further injury from the worker's physiotherapy treatment on February 21, 2013, but it was likely that the reported injury lead to a temporary aggravation of the right elbow diagnosis. The consultant also found there was no evidence that the injury sustained during treatment on February 21 materially delayed the worker's recovery from the compensable injury and recommended a graduated return to work over a 4 to 6 week period of time.
On October 15, 2013, the worker was seen at the WCB's offices for a call-in examination. Based on the WCB medical advisor's opinion that there was no evidence to confirm a further injury to the worker from the February 21, 2012 physiotherapy treatment, the WCB case manager denied the employer's request for cost relief in a letter dated November 13, 2013. On January 22, 2014, the employer appealed the decision to Review Office.
On March 21, 2014, Review Office determined that the employer was not entitled to cost relief due to a secondary accident occurring on February 21, 2013 based on the WCB medical opinions outlined on June 20, 2013 and October 15, 2013. On March 14, 2014, the employer appealed Review Office's decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable legislation
The Appeal Commission is bound by The Workers Compensation Act (the Act) and the policies of the WCB’s Board of Directors. WCB Policy 31.05.10, Cost Relief/Cost Transfers (the “Cost Relief Policy”) sets out when employers are eligible for cost relief. One of the circumstances in which cost relief is available to eligible employers is:
3. (a) (iii) When a subsequent compensable injury occurs outside the workplace while the worker is already receiving benefits and the second accident extends the period of time loss. The cost relief criteria and method of cost allocation are described in (Schedule C).
Schedule C sets out the criteria for cost relief when there has been a further injury subsequent to a compensable injury. When a worker is receiving benefits and the duration of benefit is extended due to a further separate injury, compensable under Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, the additional costs attributable to the further injury may be eligible for cost relief in the following circumstances:
(i) when the further injury arises out of a situation over which the WCB exercises direct specific control; or
(ii) when the further injury arises out of the delivery of treatment for the original compensable injury.
WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, applies to a separate injury that is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the compensable injury, including when the further injury arises out of the delivery of treatment for the original compensable injury.
Worker's Position
The worker did not participate in this appeal.
Employer’s Position
The employer, represented by an advocate in the appeal, took the position that full cost relief should be granted based on the evidence indicating the worker sustained a new significant injury during his physiotherapy treatment for the compensable injury, and that the secondary injury greatly prolonged his claim.
The employer pointed to the worker’s statements about the injury he claimed occurred during physiotherapy treatment on February 21, 2013 as well as to the October 15, 2013 opinion of the WCB medical advisor which noted that “The [worker’s] presentation is considered to be atypical almost 1 year post cubital tunnel release…in a manner not likely accounted for patho-anatomically in relation to the accepted diagnoses and treatment for same.” The employer also noted that prior to the February 2013 physiotherapy-related secondary injury, the worker was close to recovery from his workplace injury but that afterwards, his physical restrictions were extended for several more months and there was a lengthy delay in his recovery.
Analysis
The employer requested cost relief on the basis that the worker sustained a secondary injury in the course of receiving treatment and that the secondary injury extended the period of time loss.
In order for the employer’s appeal to be successful, the panel must find that the criteria for cost relief under paragraph 3(a)(iii) of the Cost Relief Policy have been met. Specifically, in order to grant the appeal, we must find that a subsequent compensable injury occurred outside the workplace while the worker was already receiving benefits and that the second accident extended the period of time loss. The criteria set out in Schedule C to the Cost Relief Policy must be applied.
The evidence before us supports the employer’s assertion that the worker was close to recovery from his compensable workplace injury in early February 2013. At the end of January, he was moving toward a return to work. The physiotherapy report of January 31, 2013 set out temporary restrictions to be reviewed in two weeks time. The worker returned to work and on February 15, 2013 those restrictions were reviewed by his treating physiotherapist and remained unchanged.
Then, something happened to change the trajectory of the worker’s recovery. On February 26, 2013 the worker reported to the WCB that he saw a different physiotherapist on February 21, 2013 and in the course of that treatment, his right elbow was extended beyond his range of motion, immediately causing him pain. Since that time, the worker reported, he was experiencing burning and throbbing in his elbow and tingling in his fingers.
The worker’s surgeon noted on June 18, 2013 that the worker described an incident occurring in physiotherapy treatment and that since that time he has noted increased numbness and tingling in his 3rd, 4th and 5th fingers. This is contrasted with her report from January 3, 2013 when the surgeon noted that the worker reported a marked improvement in sensation with less numbness and tingling in the ulnar nerve distribution.
Subsequent to February, the worker continued to receive weekly physiotherapy treatments and complained of increased pain and increased numbness. The findings noted in the March 8, 14 and 21, 2013 physiotherapy notes support the WCB medical advisor’s comment in the memo dated May 1, 2013 that “Recovery is typically slow for cubital tunnel release surgery; however there appears to have been an aggravation occurring during physiotherapy treatment that has delayed healing of the worker’s compensable elbow condition….”
In contrast, the WCB medical advisor found, in October 2013 that the current medical evidence did not indicate a secondary injury stemming from the February 2013 physiotherapy treatments. The WCB medical advisor did not reference the physiotherapy treatment notes in coming to that conclusion and relied instead upon the medical evidence from the June nerve conduction study, the July surgeon’s report and his own call-in exam findings in reaching that conclusion.
Based upon the evidence of the worker’s own statements, the ongoing physiotherapy reports, the reports of the worker’s surgeon immediately before and in the months after the date of the reported further injury and the WCB medical advisor’s report of May 1, 2013, we find on a balance of probabilities that a separate injury did occur in the course of the worker’s physiotherapy treatment for his compensable injury. This further injury was a subsequent compensable injury as set out in the Cost Relief Policy.
In order to find that the employer is entitled to cost relief on the basis of a subsequent compensable injury, we must also find that the subsequent compensable injury extended the period of time loss.
The evidence establishes that investigation of the subsequent injury, including nerve conduction studies, EMG testing and the call-in exam extended the period of time loss. The WCB medical advisor’s comments of May 1, 2013 support that the worker’s recovery was delayed by the subsequent injury. The worker continued his physiotherapy treatment and restrictions remained in place through to the fall of 2013. As noted in the October 15, 2013 report of the WCB medical advisor, the worker’s presentation at one-year post surgery was atypical and not accounted for by the original compensable diagnosis. Based upon these facts in evidence before us, we find on a balance of probabilities that the subsequent compensable injury did extend the period of time loss.
The employer's appeal is therefore accepted and the employer is entitled to cost relief in regard to the secondary injury.
Panel Members
K. Dyck, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
K. Dyck - Presiding Officer
Signed at Winnipeg this 22nd day of July, 2014