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 January 23, 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

The worker filed a claim with the WCB for injuries to her middle and upper back that she related to the nature of her job duties as a licensed practical nurse. The date of injury was recorded as being August 29, 2015. The worker's claim for compensation was accepted and benefits and services were paid. The diagnosis accepted as compensable was a mid-upper back strain.

On February 18, 2016, the WCB case manager noted that she had spoken to and reviewed the claim with a WCB medical advisor, and there was no evidence of a pre-existing condition that had significantly prolonged the recovery of the compensable injury. By letter dated February 18, 2016, the employer was advised that the WCB had determined that there was no basis for cost relief.

In a submission to Review Office dated March 18, 2016, the employer's advocate appealed the WCB's decision to accept the worker's claim. On April 21, 2016, Review Office confirmed that the claim for compensation was acceptable.

In a further submission to Review Office dated June 13, 2016, the employer's advocate appealed the WCB's decisions to pay the worker wage loss benefits beyond December 12, 2015 and to deny the employer cost relief.

On August 8, 2016, Review Office determined that the worker was entitled to wage loss benefits beyond December 12, 2015 and the employer was not entitled to cost relief.

Review Office noted that a worker's recovery can extend beyond the "normal recovery period" for a multitude of reasons, such as general state of health prior to a workplace injury, worker's age, administrative delays, etc., and that this in and of itself does not warrant entitlement to cost relief.

Review Office noted that the WCB medical advisor listed multiple factors that can affect the reporting of pain. Review Office stated that not all of the factors listed meet the definition of a pre-existing condition, being a medical condition that existed prior to the compensable injury. Based on its review of the medical evidence on file, Review Office was not able to identify a specific pre-existing condition that significantly prolonged the claim. On August 8, 2016, the employer's advocate 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 supported that the worker had a pre-existing condition which caused her recovery from the workplace injury to be significantly prolonged, and the circumstances therefore met the criteria set out in the Policy.

The employer's advocate wrote, in part:

…WCB's Medical Advisor very clearly stated that the claimant's disability and symptoms at the time of the call-in examination were due to a non-compensable condition. Furthermore, the evidence indicates that the non-compensable condition was adversely affecting her recovery from the workplace injury.

…it is important to consider our request within the context of the lack of any significant accident mechanism. There was no actual specific work accident or incident to cause the claimant's back condition. This is relevant to our request for cost relief insofar as any degree of disability is difficult to relate solely to the accepted work "accident" and injury. It is also very important to note that WCB's Medical Advisor actually stated that there was no diagnosis provided for the claimant's condition (presumably the work-related condition/injury).

…the claimant was examined by a WCB Medical Advisor on October 20, 2015 and in it he (sic) stated "if her symptoms were initially related to work activity, it would be expected that they would resolve, not get worse, with absence from the workplace." The Medical Advisor went on to list a variety of potential non-compensable causes for the claimant's disability.

In particular, the WCB Medical Advisor made the following statements in a file review:

*"To summarize, she would now have reported pain for over three months. There was no specific accident; she reports that the pain is related to general work duties. At the call in exam, she indicated the pain was 10/10 (where it was explained that 10/10 was the worst pain you could imagine from anything). This is despite being off work for months and having appropriate treatment."

*"This combination of findings cannot be accounted for on a patho-anatomic basis in relation to her work duties. The findings are widespread to the upper and lower limbs, with neurological features not consistent with a mid back source."

*"This is not to say there is nothing wrong with the worker, it just can't be related to a C/I [compensable injury]." - this statement makes it very clear that the worker was suffering from a non-compensable pre-existing medical condition and that it was the primary cause of her symptom...

*"The worker was not able to tolerate any attempt at return to work. That cannot be medically accounted for in relation to this C/I …"

In conclusion, the WCB Medical Advisor's…statements and conclusions demonstrate clearly that the claimant's symptoms and disability from work were due to a non-compensable medical condition. If one accepts that the injury claim itself is acceptable (as WCB has) then the length of disability is not accounted for by that acceptable work injury. The only explanation for the significantly extended period of disability is the claimant's non-work medical condition/s.

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 her 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.

The panel notes that the employer did not advance the position that the worker's accident or injury was caused by a pre-existing condition and has not asked for 100% cost relief.

For the employer to be eligible for 50% cost relief, the panel must find that the worker had a pre-existing condition and that the pre-existing condition significantly prolonged the claim. For the reasons that follow, the panel finds that neither of these requirements has been met.

The worker has an accepted claim for a mid-upper back strain. The employer's advocate has argued that statements from the WCB medical advisor make it clear that the worker was also "suffering from a non-compensable pre-existing medical condition." The advocate has not specified or identified what this pre-existing condition or these pre-existing conditions might be.

A pre-existing condition is a medical condition that existed prior to the compensable injury. The panel has carefully reviewed the medical information on file and is unable to identify any clinical evidence of a pre-existing condition on file.

The employer's advocate argued that in her report from the October 20, 2015 call-in examination, the WCB medical advisor listed "a variety of potential non-compensable causes for the claimant's disability." The panel notes the medical advisor expressly stated in her report that it was unclear why the worker continued to report pain. She went on to comment that "it is known that there are multiple factors that can affect the reporting of pain", and listed nine such factors, including the "presence of other medical conditions" and some non-medical conditions. The list was not specific to the worker, and the medical advisor indicated that she was unable to identify any particular factors or pre-existing medical or other conditions as being involved in or explaining the worker's presentation.

The panel notes that the fact that a worker's ongoing symptoms are difficult to explain or that recovery may have extended beyond what would be considered to be an average recovery period does not automatically mean or imply that there is a significant pre-existing condition affecting recovery.

The Policy is specific in allowing 50% cost relief for claims involving a "pre-existing condition." As no pre-existing condition has been identified, the panel finds that this requirement of the Policy has not been met.

Based on our review of the evidence, the panel is further satisfied that there has been no prolongation or no significant delay or prolongation of the worker's claim due to a pre-existing condition. Whether a claim has been significantly delayed or prolonged depends on the facts of each case.

The panel notes that the WCB medical advisor indicated in her notes from the October 20, 2015 call-in examination that a strain type injury usually recovers within six weeks, and that the call-in examination took place over seven weeks after the accident. The medical advisor noted that it would not be expected that a strain-type injury from two months previously would lead to total disability, and recommended that treatment at that time should be active based, which would include a gradual return to work and activities. A graduated return to work was arranged, and responsibility for wage loss benefits ended on January 11, 2016, the date on which the worker was considered recovered and fit to work full duties in accordance with the return to work plan.

File information shows that the case manager reviewed the claim file with a WCB medical advisor on February 18, 2016, and it was noted that there was no evidence of a pre-existing condition that had significantly prolonged recovery from the workplace injury.

Based on the foregoing, the panel finds 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
M. Payette, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 23rd day of March, 2017