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 March 14, 2017 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 December 7, 2015, the worker filed a claim with the WCB for a psychological condition that he related to the nature of his job duties as a paramedic. The worker reported that he was sent to a call on December 1, 2015 when he started to experience flashbacks of prior grizzly scenes and patients.

On January 18, 2016, the worker was advised that his claim for compensation was accepted and that wage loss benefits would commence on December 6, 2015. The compensable diagnosis was post-traumatic stress disorder ("PTSD").

On March 31, 2016, the WCB advised the worker that wage loss benefits were being suspended as he was recovering from a non-compensable medical condition which precluded him from participating in a return to work program. The WCB advised that the suspension of wage loss benefits would continue until the worker was able to fully participate in the WCB program. The March 31, 2016 correspondence stated:

Once it is determined that the non-compensable condition no longer impacts your ability to participate in the return to work plan with the accident employer, WCB wage loss will be reinstated.

On June 3, 2016, the employer's representative wrote the WCB and stated:

We note that wage loss benefits on this claim were suspended due to a very serious medical condition that the claimant has been diagnosed with either prior to, or concurrent with, the workplace injury. Since this serious non-compensable medical condition would've most certainly…caused the claimant very significant stress, we are requesting… employer cost relief on this claim.

It is reasonable to conclude that the claimant's non-compensable medical condition affected the development of his PTSD, as well as the impact of it. We therefore believe the employer cost relief would be both reasonable, and warranted, in this case.

On September 30, 2016, Compensation Services wrote the employer to advise that there was no entitlement to cost relief. The letter stated, in part:

…the worker had a claim for a condition arising from a workplace incident…The medical information provided and reviewed supported that the worker would require 3 - 6 months of treatment and recovery in order to return to work and eliminate his loss of earnings (between March to May, 2016).

Benefits were suspended March 31, 2016 as a result of non-compensable condition that likely pre-dated the claim date, but was diagnosed post-accident. No wage loss benefits have been paid beyond March 31st in recognition of the non-compensable condition. Given that this was 4 months post-accident - within the parameters of recovery already outlined by the Medical Practitioner, there was no impact on prolonging the claim. There is no entitlement to cost relief.

On October 27, 2016, the employer's representative appealed the above decision to Review Office. The representative outlined the position that the non-compensable condition was a pre-existing condition even if the diagnosis was made post-injury and that it was impacting and prolonging the worker's recovery from the workplace injury. Therefore the criteria of the WCB's policy on cost relief had been met.

On January 4, 2017, Review Office determined that the employer was not entitled to cost relief. Review Office made reference to the WCB's policy concerning cost relief and was unable to conclude that the claim was either caused by a pre-existing condition or was significantly prolonged by a pre-existing condition.

Review Office noted that the worker had a psychiatric injury and it was accepted to have arisen out of and in the course of his employment. There was no evidence of a pre-existing condition at the time of the injury. This was supported by the psychiatrist's remarks dated December 4, 2015 that "He presents now with classic symptoms of (compensable injury diagnosis) related to his experiences as a Paramedic. I do not see any evidence for co-morbid psychiatric disorders…"

Review Office referred to the employer's argument that despite a post-accident diagnosis for the worker's non-compensable medical condition, it must have existed before the compensable claim. Review Office found this view to be conjectural and found no evidence the worker had this medical condition before the accident. Review Office commented that the two conditions (the non-compensable condition and the compensable injury) were significantly different. The costs of the claim were specifically related to the effects of the compensable injury. Any non-compensable injury, health condition or signs or symptoms that develop or occur after the accident for the claim, is not a "pre-existing condition" because it did not exist before the accident and thus would not be considered for the application of cost relief.

In January 2017, 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 (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's submission to the Appeal Commission stated:

We believe that the evidence on file strongly supports our position and the evidence clearly indicates that the worker's pre-existing condition significantly prolonged his recovery from the workplace injury of post-traumatic stress disorder (PTSD).

The employer disagreed with Review Office's position that the worker's non-compensable medical condition was not pre-existing because it was diagnosed after the compensable injury and that there was no evidence that the worker's non-compensable medical condition existed prior to the compensable injury.

The employer asserted that "…the circumstances of this claim meet the letter of the WCB's Cost Relief Policy."

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.  Specifically, for the employer 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 make that finding.

The psychologist who treated the worker on December 4, 2015, stated that the worker should remain off work for at least three months, while his attending physician indicated in his report of December 22, 2015 that he would be off four to six months.  This timeframe was acknowledged by the WCB medical advisor on July 25, 2016.  The panel therefore finds that the expected claim duration for the worker's compensable PTSD was up to six months.

The worker was hospitalized on or about March 18, 2016 for a non-compensable medical condition which required surgery and rehabilitation.  The non-compensable medical condition impacted the worker's ability to fully participate in the treatment and recovery from the compensable injury as of that date.  As a result, wage loss benefits and psychological counselling were discontinued by the WCB after March 31, 2016.  The WCB continued to cover treatment costs after March 31, 2016, for such things as medications and other costs specifically related to the compensable injury.

Treatment and rehabilitation for the worker's non-compensable medical condition concluded on or about June 7, 2016.  The worker was then able to re-commence treatment for his compensable injury through his attending psychologist on June 27, 2016 which continued until the end of October 2016 at which time the worker's treating psychiatrist stated that "...continued psychotherapy services through WCB are no longer required."  Wage loss benefits were not reinstated at any point after March 31, 2016.

Although the worker's PTSD diagnosis had resolved by the end of October 2016, there was still ongoing coverage for medications related to the treatment of PTSD which a WCB psychiatry consultant opined "generally are required for some time after resolution of PTSD.  Discontinuing the medications could result in reemergence (sic) of the symptoms."  In the panel's view, this type of medical aid is consistent with the management of a PTSD injury, and is not a factor in our consideration of this cost relief appeal.

In reviewing the chronology of events related to this claim, the panel is unable to determine that there was a significant prolongation of the claim duration resulting from the worker's non-compensable illness.

The WCB claim commenced at the beginning of December 2015 and continued until mid-March 2016 at which time wage loss and treatment were suspended.  The worker again commenced psychological treatment in June 2016 and that treatment was concluded near the end of October as the worker's PTSD was determined to be resolved.  Therefore, the time loss directly resulting from the compensable injury was approximately seven months from the time that the worker's treating physician suggested a four to six month treatment period (three months prior to the March 31, 2016 letter of suspension of wage loss benefits and four months after the worker again commenced treatment near the end of June 2016.)

The time loss of approximately three months resulting from the treatment of the non-compensable medical condition did not impact the claim duration as the worker's WCB claim was suspended during that period of time.  As a result, although the time period between the date of injury at the beginning of December 2015 until the time the PTSD had resolved was approximately eleven months, the actual time loss due to the compensable injury and provision of medical aid targeted at the worker's PTSD was approximately seven months.  The panel finds that the additional one month does not meet the policy criterion of "significantly prolonged."

The panel acknowledges that the treating psychologist makes reference to an ongoing effect of the non-compensable medical condition upon the worker's overall recovery during his treatment for the compensable injury.  However, the panel is of the view that the non-compensable medical condition did not significantly prolong the claim given the expected duration and the actual duration of treatment for the compensable injury.

While there is a concern raised by the employer regarding whether the non-compensable medical condition met the criteria of a pre-existing condition, the panel finds it unnecessary to address the issue given our analysis of the claim.

Based on the foregoing, the panel finds that the worker's claim was not significantly prolonged by a pre-existing condition.  The panel therefore finds that the employer is not entitled to cost relief.

The employer's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. Kernaghan - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of March, 2017