The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that it was not entitled to cost relief.  A file review was held on August 2, 2016 to consider the employer's appeal.

Issue

Whether or not the employer is entitled to cost relief.

Decision

That the employer is not entitled to cost relief.

Background

On April 26, 2015, the worker felt a pull in his left shoulder when he slipped and caught himself with his left arm during the course of his employment as a truck driver. The claim for compensation was accepted by the WCB based on the diagnosis of a left shoulder AC joint sprain.

On December 21, 2015, the employer's representative asked the WCB to provide the employer with cost relief based on the following rationale:

The claimant's recovery from the accepted workplace shoulder injury has been prolonged significantly. In fact, in a file review dated October 13, 2015, WCB's Medical Advisor stated that "material/functional recovery would typically be anticipated over a period of weeks, but not typically months" for an injury such as the claimant's.

The only logical reason for the delay in his recovery is his pre-existing degenerative arthrosis, as noted on the MRI scan results. The arthrosis would explain why the claimant's recovery has become longer than expected, especially in the context of no tears having been found after diagnostic investigations.

For these reasons, we believe that it would be unfair for the employer to have to absorb the full costs of this claim and we believe that the circumstances satisfy WCB's Cost Relief policy in this case.

In a decision dated January 26, 2016, Compensation Services advised the employer's representative that there was no basis to provide cost relief. The decision was reached following consultation with a WCB medical consultant who opined that there was no significant pre-existing condition that prolonged the recovery phase of the worker's left shoulder injury. On January 27, 2016, the employer's representative appealed that decision to Review Office.

On March 4, 2016, Review Office asked a WCB orthopedic consultant to review the medical evidence and provide an opinion as to whether there was a pre-existing condition which may have impacted the duration of the worker's recovery. The response to Review Office is dated March 9, 2016.

In a decision dated April 6, 2016, Review Office determined there was no entitlement to cost relief for a pre-existing condition.

Review Office noted in its decision that the worker did have a pre-existing condition involving his left shoulder as demonstrated by MRI findings, but also found that it did not significantly prolong the duration of the claim. Review Office placed weight on the following:

• The WCB medical advisor reviewed the claim in October 2015 and stated that "Material/functional recovery would typically be anticipated over a period of weeks, but not typically months." Review Office stated that it considered the above comments but placed more weight on the actual file evidence which demonstrated that the worker had not materially recovered from his compensable injury within the weeks following his accident.
• The worker was referred to a reconditioning program and it was noted that the physiotherapist had to teach the worker "to overcome the fear of using his left arm." Review Office determined that this was, on the balance of probabilities, related to the change in function/pain symptoms experienced following the onset of the compensable injury. Review Office found the worker was using his left shoulder/arm, with the pre-existing condition, prior to the workplace accident.
• Two WCB medical consultants provided opinions stating the MRI findings of mild AC arthrosis and rotator cuff tendinosis would likely not have prolonged recovery from the compensable injury. Review Office accepted these opinions.

Based on the foregoing, Review Office stated that "the presence of a pre-existing condition involving the worker's left shoulder did not significantly prolong the claim. As such, there is no entitlement for cost relief on this basis."

On April 13, 2016, the employer's representative 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, regulations and policies of the WCB's Board of Directors.

WCB Policy 31.05.10, Cost Relief/Cost Transfers (the "Policy"), outlines circumstances in which claim costs may be removed from the cost experience of an accident employer and charged to a collective cost pool. This process is called "cost relief."

This appeal deals with the employer's request for cost relief in the case of a worker with a pre-existing condition. Section 1(a)(i) of the Policy provides that cost relief is available to eligible employers:

When 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 of the Policy states, in part, as follows:

The following pre-existing conditions will result in immediate 100% cost relief to the employer:

• When the prior condition is determined to be the primary cause of the accident…

For other claims involving a pre-existing condition, 50% cost relief may be provided. When a claim is significantly prolonged by a pre-existing condition, cost relief for 50% of the claim costs will be provided to the employer if the worker's time loss is greater than 12 weeks.

Employer's Position

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

The employer's position was that the evidence on file supported their request for cost relief based on a well-documented pre-existing degenerative condition. It was submitted that the worker's pre-existing condition affected the same physical site as the work injury, and the evidence demonstrated that his treatment was adversely impacted and his recovery prolonged as a result of that condition.

The employer's advocate noted that the diagnosis of the accepted compensable injury was simply that of a left shoulder AC joint sprain. Even though extensive medical and diagnostic investigations were performed, no other diagnosis was ever accepted by the WCB. The advocate submitted that the expected recovery period for the strain injury would typically be four to six weeks, and this expectation was actually articulated by the WCB medical advisor who stated, on October 13, 2015, that recovery would typically be anticipated over a period of weeks, not months.

The advocate pointed out that the July 29, 2015 MRI showed only pre-existing conditions and no active sprain. Accordingly, as at that point in time, and even earlier, the worker's symptoms were due to his non-compensable shoulder condition rather than his acute work-related sprain injury.

It was significant, in the employer's view, that the worker's physiotherapist advised that the worker was fit to resume his full regular duties as of June 13, 2015. The worker's disability was prolonged beyond that time, and in the employer's submission, the additional significant delay in recovery could only have been due to the worker's pre-existing degenerative condition. It was submitted, therefore, that the claim met the WCB's criteria for granting employer cost relief.

Worker's Position

The worker did not participate in the appeal.

Analysis

The issue before the panel is whether or not the employer is entitled to cost relief. The employer is seeking cost relief on the basis that the worker had a pre-existing condition which significantly prolonged his claim. In order for the employer's appeal to be successful, the panel must find that the employer's request meets the requirements under section 1(a)(i) and Schedule A of the Policy. The panel is unable to make that finding.

For cost relief to apply, the worker must have a pre-existing condition and time loss must exceed 12 weeks. The panel accepts that these requirements have been met.

The final requirement to be eligible for 50% cost relief is that the claim has been significantly prolonged by the pre-existing condition. The panel is unable to find that this requirement has been met.

The worker was diagnosed at the outset with a left shoulder AC joint sprain. The panel notes that information contemporaneous to the accident discloses nothing sinister beyond muscle and ligament complaints. Based on our review of the information on file, the panel is unable to find any evidence that the claim was delayed because of any other condition in the worker's body.

In support of its request for cost relief, the employer has relied on the July 29, 2015 MRI of the worker's left shoulder. The MRI documented "mild AC arthrosis with considerable clavicular head edema" and mild rotator cuff tendinosis.

The panel notes that on October 13, 2015, the WCB medical advisor reviewed the medical reports on file, including the July 29 MRI, and opined that both the initial and current diagnoses were left shoulder AC joint sprain/strain. While the WCB medical advisor noted that recovery would typically be anticipated over a period of weeks, not months, he went on to state that:

Considering the MRI findings and the ongoing clinical findings it is probable [the worker's] current shoulder complaints are accounted for in relation to the April 26, 2015 workplace incident.

The WCB medical advisor further stated that the treating physician had proposed a shoulder injection to facilitate further physiotherapy/strengthening, and that this would be a reasonable approach.

A call-in examination was subsequently conducted by the WCB physiotherapy consultant. In his notes of that examination held November 2, 2015, the consultant also opined that the worker's current presentation was medically accounted for in relation to the workplace injury. In support of his opinion, the physiotherapy consultant referred to the July 29 MRI and his own findings as a result of the examination, which included a finding of a positive left shoulder impingement test. The physiotherapy consultant went on to recommend further treatment in the form of a scapular and rotator cuff strengthening program.

Funding for that program was approved, and within less than two weeks of the call-in examination, the worker commenced a reconditioning program to treat his right shoulder injury. The worker completed the reconditioning program in mid-January 2016, and on January 26, following a discussion with the attending physiotherapist, the WCB physiotherapy consultant noted they had agreed the worker was functionally able to return to work. The worker was then notified that since the program had ended January 14, 2016 and he was able to return to his pre-accident duties, his wage loss benefits ended on January 22, 2016.

The panel notes that the treatment which was provided to the worker in the course of the claim was consistently directed towards the injury that had been diagnosed and accepted at the beginning of the claim. Based on the evidence, the panel is satisfied that the pre-existing degenerative conditions were background conditions only, which were not central to the claim. The panel finds, on a balance of probabilities, that any delay in the worker's recovery was associated with the normal medical management of the worker's claim, and was not due to the worker's pre-existing condition.

In arriving at our decision, the panel places significant weight on the December 22, 2015 opinion of the WCB medical consultant who opined that it was unlikely that there was a significant pre-existing condition that was acting to prolong the recovery phase of the injury. The consultant acknowledged that the July 29 MRI "demonstrated mild AC arthrosis and very mild supraspinatus tendinosis," but concluded that neither of these were severe enough to prolong recovery.

The panel also places significant weight on the March 9, 2016 opinion of the WCB orthopedic consultant, who opined, in part:

On balance of probabilities, there was not a pre-existing shoulder condition which would have materially contributed to delay in recovery from the workplace injury of April 26, 2015.

a) There is no history on record of any symptoms in the left shoulder prior to the workplace injury.

b) MRI dated 29-July-2015 is reported as showing supraspinatus tendinosis and mild acromion-clavicular (AC) joint osteoarthritis (OA). The MRI also reports supraspinatus tendinosis and distal clavicle oedema, the latter being consistent with a recent injury to the AC joint.

c) Call-in examination at WCB offices on 2-Nov-2015 noted clinical findings of tenderness of the left AC joint and pain on cross-body adduction. These are typical clinical signs of pain generation at the AC joint. Similar clinical findings had been noted…on 30-April-2015, when a painful arc of abduction was also noted at 50 degrees abduction of the left shoulder.

d) The mild degree of pre-injury OA of the AC joint and the mild degree of rotator cuff tendinosis would not generally be expected to cause delay in recovery from a strain injury of the AC joint.

The panel accepts the opinions of the WCB medical consultant and the WCB orthopedic consultant that there was not a pre-existing condition which would have prolonged or materially contributed to delay in recovery from the workplace injury.

In conclusion, the panel finds that the worker's claim was not significantly prolonged by his pre-existing condition. The employer is therefore not entitled to cost relief.

The employer's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer

A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 29th day of September, 2016