Decision #160/16 - Type: Workers Compensation
Preamble
The employer appealed the decision made by the Workers Compensation Board ("WCB") that they were only entitled to 50% cost relief with respect to the worker's compensable injury. A file review was held on September 21, 2016 to consider the employer's appeal.
Issue
Whether or not the employer is entitled to 100% cost relief.
Decision
That the employer is not entitled to 100% cost relief.
Background
The worker has an accepted claim with the WCB for post-traumatic stress disorder ("PTSD") related to an incident that occurred on October 31, 2012 during his employment. The worker was paid various types of benefits from the WCB while attending for treatment with his general practitioner, a social worker and a psychiatrist. The worker was also provided with vocational rehabilitation assistance as it was determined that he was unable to return to his pre-accident position due to permanent workplace restrictions.
On January 5, 2015, the employer was advised by a WCB case manager that there was evidence of a pre-existing condition which contributed to the time loss from work. As a result, 50% of the total costs of the claim would be removed from the firm's experience. On October 26, 2015, the employer's representative appealed the decision to Review Office.
On January 6, 2016, Review Office determined that the employer was not entitled to 100% cost relief. Review Office stated that it was unable to find that the worker's pre-existing condition was the primary cause of his accident.
Review Office accepted that the worker experienced an acute psychological injury following the events of October 31, 2012. Review Office noted that a WCB psychology consultant provided the opinion that the medical evidence supported that the worker has "significant pre-CI (compensable injury) psychological issues that could well have influenced the compensable injury and, that most likely have significantly prolonged the claimant's recovery." Review Office stated it was in agreement with the consultant's opinion and in accordance with WCB policy, 50% cost relief was granted to the employer.
Review Office concluded that the worker was involved in a specific triggering event at the workplace which was the primary cause of the accident. Review Office determined the policy provisions allowing for 100% cost relief do not apply to the worker's case. In January 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 Board of Directors. The Act provides for cost relief and/or cost transfer in a number of circumstances.
Subsection 81.1 of the Act and Policy 31.05.10 (the “Policy”) address issues of cost relief in the case of a worker with a pre-existing condition. 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 provides as follows:
Pre-Existing Conditions
When the claim is either caused by a pre-existing condition or significantly prolonged by the pre-existing condition, the WCB may provide cost relief to Class E employers.
100% Relief
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.
- When the wearing of an artificial appliance is determined to be the primary cause of the accident.
50% Relief
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.
When the WCB has reduced the worker’s impairment rating by factoring in the worker’s pre-existing condition, the WCB will not provide cost relief on the impairment award.
When a claim is significantly prolonged by a pre-existing condition and the impairment rating is not affected by the pre-existing condition, the WCB will provide cost relief on the impairment award.
The WCB will not provide cost relief to the accident employer when the pre-existing condition relates to a previous accident with the same employer.
Cost relief for pre-existing conditions will be charged to the Cost Apportionment Fund and allocated to the class of the accident employer.
Worker's Position
The worker did not participate in the appeal.
Employer's Position
The employer was represented by an advocate who provided a detailed written submission on behalf of the employer.
The employer submitted that in its view, the pre-existing condition both caused the accident and prolonged recovery from the accident. The employer noted that the worker clearly had a propensity to develop PTSD. The employer submits that the worker’s personality type and his propensity to develop PTSD initiated the events on the night of the incident and the incident could have been avoided if the worker had not reacted the way that he did. The employer further argued that it was the pre-existing condition itself, or propensity to develop PTSD, which was the primary cause of the accident. Put another way, without this pre-existing personality disorder, the accident could have been avoided and the worker would not have developed PTSD. For these reasons, it was submitted that the employer should be entitled to 100% cost relief on the claim.
Analysis
The employer’s request for cost relief is based on the assertion that the worker had a pre-existing personality type, or effectively a condition, which pre-disposed the worker to develop PTSD. In order for the employer’s appeal to be successful, the panel must find that the employer qualifies for relief under the Policy. In other words, in order for the employer to qualify for 100% cost relief, the panel must find that the worker’s claim was primarily caused by a pre-existing condition. We are unable to make this finding.
The worker was diagnosed with PTSD, chronic with delayed onset, depressed mood, and acute anxiety. According to the medical reports, prior to the October 31, 2012 event, the worker was a very high functioning, content individual who took great pride in his job, had a very good work- life balance, and was content to remain in his employment until retirement. The medical opinion from the worker’s treating physician also states that, to the physician’s knowledge, there were no pre-existing factors which may affect his claim.
Our review of the evidence suggests that the majority of evidence supports the conclusion the worker was a fully functioning adult prior to the workplace incident of October 31, 2012. While the worker may have had a predisposition to develop PTSD, it was the incident at work which caused the development of the worker’s condition and which was the specific triggering event for the onset of PTSD. The subsequent triggers include using an ATM machine, using a staple gun power tool while doing a kitchen repair, watching T.V. crime shows, and distress from a firearm display, among other things. The triggers are not related to the worker's childhood traumas, but rather, follow from the workplace accident.
Although the childhood traumas have come to light as part of the worker’s therapy sessions, we do not find the same connection to the childhood traumas as does the employer’s expert. Given the nature of the expert’s written opinion, we are unsure how much of the file he was provided in order to prepare the report, as the preponderance of file evidence does not support the conclusion that pre-existing trauma, including childhood trauma, caused the PTSD. On the contrary, the preponderance of evidence suggests that the worker was a fully functioning adult prior to the incident and it was only after the incident that memories of childhood traumas came forward.
We therefore find, on a balance of probabilities, that the triggering event at the workplace was the primary cause of the accident. The policy provisions allowing for 100% cost relief therefore do not apply.
In this case, the WCB has accepted responsibility for this claim and has awarded the employer 50% cost relief. The WCB psychology consultant provided an opinion that the medical evidence supports the conclusion that the worker had significant pre-compensable injuries, including psychological issues, that could well have influenced the compensable injury and, further, most likely have significantly prolonged the worker’s recovery. Based on that opinion, the review office granted the employer 50% cost relief. We accept the WCB psychology consultant's opinion and find that the awarding of 50% cost relief was done in accordance with the provisions of the Policy.
The panel therefore finds that the worker’s claim was not primarily caused by a pre-existing condition. It therefore follows that the employer is not entitled to 100% cost relief under the Policy. The employer’s appeal is denied.
Panel Members
K. Wittman, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
K. Wittman - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 7th day of November, 2016