The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") to deny their firm cost relief. A file review was held on August 11, 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 August 17, 2015, the worker was cleaning windows on his truck and tweaked his low back when he climbed down from the truck. Medical reports showed that the worker attended a chiropractor for treatment and was diagnosed with a lumbar facet injury. The claim for compensation was accepted and the WCB authorized 8 weeks of chiropractic treatment.

On October 29, 2015, the worker was seen at the WCB offices by a WCB chiropractic consultant for an assessment. Following the assessment, the consultant stated:

• The initial diagnosis related to the August 17, 2015 incident would be a lumbosacral strain/sprain type of injury with involvement of the left sacroiliac joint.
• The natural history of the diagnosis would be recovery within six to eight weeks. Factors that might delay recovery would include his weight issue.
• The current diagnosis was dysfunction of the left sacroiliac joint.
• The worker's left hip joint needed to be assessed with respect to any issues in the joint that might affect recovery.

The worker had x-rays taken of his pelvis and hips on November 17, 2015 which stated:

Comparison is made to a CT scan of the abdomen and pelvis 11/05/2015.

No destructive osseous abnormality is seen. The alignment of the hips is maintained. No acute fracture is identified.

On December 7, 2015, the employer's advocate wrote Compensation Services to request cost relief on the claim. The advocate stated:

…we believe that the evidence indicates that the claimant has a pre-existing condition and that it is the reason for his now obviously delayed recovery from the work injury.

The file information indicates that the claimant has [prior WCB injury claims which affected the same part of his body]. Furthermore…the WCB Chiropractic Advisor has said that the claimant's expected recovery time from this work injury would be "six to eight weeks." He has cited the claimant's excessive weight as a factor in his delayed recovery and…cited the claimant's multiple prior similar WCB injury claims as being a factor.

For these reasons, it appears that, on a balance of probabilities, the claimant's pre-existing condition/s have caused a significant delay in the claimant's recovery from his work injury. As such, we believe that the employer should be eligible for cost relief on this claim.

In a decision by Compensation Services dated December 10, 2015, the employer's advocate was advised as follows:

….the worker's body weight is not considered a pre-existing condition. I have reviewed his prior claim history and noted the long period of time that [the worker] has been working with no difficulties in respect to his lower back. Finally, the diagnostic testing results of November 17, 2015 did not reveal a pre-existing condition that would affect/delay his recovery from the compensable injury. Therefore, your request for cost relief is denied.

On January 11, 2016, the employer's advocate appealed the above decision to Review Office. The advocate stated that the evidence, "taken in the context of the virtually non-existent accident mechanism, indicates that the cumulative effect of the claimant's prior WCB injury claims, along with his [body weight issue] has significantly prolonged his recovery from this workplace injury."

On January 28, 2016, Review Office determined that there was no entitlement to cost relief due to a pre-existing condition based on the following:

• Review Office did not find that the worker's prior WCB claim history had affected recovery from the August 17, 2015 compensable injury. The chiropractor had not treated the worker's lower back since August/September 2013. The worker was performing his regular duties at the time of his accident in August 2015 and said he was "feeling fine" prior to his shift. X-ray results did not identify any abnormalities.
• The evidence showed that the worker was still suffering from the effects of his compensable injury beyond the estimated recovery norm, as per the objective medical findings recorded by the treating chiropractor and the WCB chiropractic consultant.
• Review Office did not find that the worker's weight was significantly prolonging his claim. The objective medical findings associated with the compensable injury were why the worker required ongoing restrictions and treatment.

On January 28, 2016, the employer 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 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 or conditions. Section 1(a)(i) of the Policy provides that cost relief is available to eligible employers:

(i) 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 review. The employer's position was that their request for cost relief was both warranted and met the criteria of the WCB Policy.

It was submitted that obesity is a valid diagnosed medical condition, and had been cited in this case as a major factor in the worker's delayed recovery from the work injury. The worker's obesity pre-existed the work injury. It was no different than a pre-existing degenerative condition, and should be acknowledged as a valid pre-existing condition.

In the employer's view, the evidence, especially in the context of the virtually non-existent accident mechanism, indicated that the cumulative effects of prior similar injury claims had also significantly prolonged the worker's recovery.

It was submitted that the WCB chiropractic advisor reviewed the claim and was of the opinion that the diagnosis of the worker's work injury was a sprain/strain and the expected recovery time would be 6 to 8 weeks. The worker's recovery time far exceeded that expectation, and no new diagnosis had been provided to explain the delayed recovery. In the circumstances, the only logical explanation for the significant delay in recovery was the worker's pre-existing condition of obesity and his multiple prior work injuries.

It was therefore submitted that the circumstances of the claim met the criteria of the Policy, and employer cost relief could, and should, be granted.

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 or conditions 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 of section 1(a)(i) and Schedule A of the Policy. The panel is unable to make that finding.

For the employee to be eligible for 50% cost relief, the panel must find that the worker's claim has been significantly prolonged by a pre-existing condition. The panel is unable to find that this requirement has been met.

The employer has argued that the worker has a "diagnosed pre-existing condition of obesity." The panel notes that there is nothing on the claim file which shows that any medical practitioner had identified, or diagnosed the worker as having a pre-existing condition of obesity.

The panel further notes that there is no indication on file that the worker's weight or alleged condition of obesity was delaying or had delayed his recovery. The employer has relied on comments made by the WCB chiropractic consultant in his report of the October 29, 2015 call-in examination of the worker, noting that the consultant "cited the [worker's] excessive weight as a factor in his delayed recovery…" The panel does not agree with this interpretation of the consultant's comments. The consultant's comments in this regard, made in response to a question from the WCB case manager, were as follows:

2. What is the natural history of [the initial] diagnosis?

Response:

The natural history of the diagnosis would be a recovery within a six to eight week timeframe. Factors that may delay recovery identified on this exam of [the worker] would include his weight issue.

In the panel's view, the statement that worker's weight issue "may" delay recovery is not an indication that it will or has done so.

With respect to previous WCB claims, the panel reviewed the worker's previous claim history, but was unable to find that there was anything to indicate that his previous claims had impacted or significantly prolonged his recovery from his August 17, 2015 injury.

File information showed that the worker had been treated for a back issue almost two years prior to his accident. In a letter dated August 24, 2015, written in response to an inquiry from the WCB adjudicator with respect to any pre-existing lower back issues, the worker's treating chiropractor stated that the worker had injured his lower back on August 23, 2013, and "was treated successfully and discharged September 6, 2013."

Based on our review of the evidence, the panel is further satisfied that there has been no significant delay or prolongation of the worker's claim. Whether a claim has been significantly delayed or prolonged depends on the facts of each case. The panel notes that the reference by the WCB chiropractic consultant to a natural history of recovery within six to eight weeks represents what would be considered to be an average recovery period, and cases will often fall outside that average.

In this case, file information shows that the worker originally attended for chiropractic treatment. In late October, it was determined that he had plateaued with the chiropractic care and further chiropractic therapy would likely not be of benefit. The WCB chiropractic consultant recommended that the worker undergo a course of physiotherapy, but stated that x-rays needed to be taken before that could occur. The x-rays that were taken did not reveal any issues or pre-existing condition which would affect the worker's recovery. Physiotherapy treatments then commenced at the beginning of January 2016. In early February, the treating physiotherapist advised that progress had been slow, with pain being the limiting factor, but that the worker had functionally progressed to that point. On February 11, 2016, the worker was discharged from physiotherapy with a home exercise program, and on February 22, 2016, the worker started working again.

The panel is satisfied that the change in treatment from chiropractic care to physiotherapy treatments was not a delay as contemplated by the Policy. In the panel's view, it is part of the normal progression of a claim to change to another form of treatment where the current treatment is not effective, or no longer considered to be beneficial. X-rays had to be taken before physiotherapy treatments could begin. Once they were taken and no issues had been identified, the physiotherapy treatments proceeded and were successfully completed, and the worker returned to work shortly after that.

In conclusion, the panel finds, on a balance of probabilities, that the worker's claim was not significantly prolonged by a pre-existing condition. The employer's request does not meet the requirements of the Policy. 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
(on behalf of the panel)

Signed at Winnipeg this 6th day of October, 2016