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 pain in her left shoulder and left neck that occurred on July 29, 2015 while performing the duties of a healthcare aide. The worker was diagnosed with a left trapezius strain. Her claim for compensation was accepted and benefits and services were paid.

On March 30, 2016, the worker was advised of the WCB's decision that she had recovered from her compensable left shoulder injury and that her current symptoms were not related to the workplace injury of July 29, 2015.

In a letter to the employer dated March 30, 2016, the WCB advised that the claim had been reviewed and it had been determined that there was no entitlement to cost relief, as a pre-existing condition had not been identified that had significantly prolonged the worker's recovery from her compensable injury.

On April 2, 2016, the employer's advocate appealed the decision to deny cost relief. He stated that:

 …in the absence of a serious contributory work incident, on a balance of probabilities, the claimant's pre-existing cervical spinal degenerative disc disease has significantly contributed to her prolonged recovery from the accepted work injury. We therefore believe that WCB can, and should, grant employer cost relief on this claim.

On May 3, 2016, Review Office determined there was no entitlement to cost relief as it found that a pre-existing condition did not cause or significantly prolong the claim.

Review Office noted that a January 25, 2016 MRI of the worker's cervical spine revealed "Degenerative disc disease [mild] at C5-6." Review Office found that these changes represented a pre-existing condition. With respect to the WCB's policy concerning cost relief, Review Office indicated that the criteria for 100% cost relief had not been met, as it did not find that the pre-existing condition was the "primary cause" of the workplace accident.

Review Office also concluded that the employer was not entitled to 50% cost relief, as it was unable to find that the worker's claim was significantly prolonged by a pre-existing condition. Review Office found that the worker's level of function prior to her date of accident was not impaired as a result of the pre-existing condition, and placed weight on an opinion from a WCB medical advisor dated February 14, 2016.

On August 11, 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 in support of their appeal. It was the employer's position that the evidence clearly demonstrated that the worker had a serious pre-existing condition which significantly prolonged her recovery from the workplace injury.

The employer's advocate noted that the worker's claim was non-specific in nature, with no one particular incident causing it. In spite of this, the claim was accepted for a neck and shoulder strain. It was submitted that subsequently, after several diagnostic investigations, the condition was diagnosed as being primarily degenerative in nature.

The advocate submitted that the January 25, 2016 MRI demonstrated that the worker had pre-existing C5-6 osteophytes which were serious enough to impact the spinal cord, resulting in central canal stenosis. In the employer's view, it was noteworthy that the WCB decided to end responsibility for the claim after analyzing the MRI results. This was significant, as the results revealed that the pre-existing degenerative condition was the sole cause of the worker's ongoing symptoms at that point. By that time, the recovery period from the workplace injury had already been prolonged, and the pre-existing degenerative condition was the only logical reason for the prolongation of the worker's symptoms.

It was submitted that any impingement of the spinal cord is serious and virtually always symptomatic to some degree. The radiologist's diagnosis of degenerative disc disease would explain the worker's symptoms and related disability and the lack of a significant accident mechanism. In the employer's view, the pre-existing condition was a much more plausible cause of the worker's symptoms and disability than the accepted accident.

In summary, it was submitted that in the absence of a serious contributory workplace incident, the worker's pre-existing cervical spinal degenerative disc disease contributed significantly to her prolonged recovery from the accepted work injury, and the employer should be granted cost relief on the claim.

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

The employer relies heavily on their interpretation of the results of the January 25, 2016 MRI as revealing that the worker had a serious degenerative condition. The panel notes, however, that the MRI report specifically refers to mild, as opposed to serious or significant degenerative disc disease, and reads as follows:

FINDINGS:

The cervical spinal cord is normal in signal. Vertebral body heights maintained without a compression deformity. There is loss of normal cervical lordosis but alignment is otherwise normal. Mild disc dessication is present in the cervical spine with mild degenerative disc disease at C5-6.

At C5-6, posterior disc - osteophyte complex minimally indents the anterior aspect of the cervical spinal cord resulting in mild central canal stenosis. No significant foraminal stenosis.

Remaining cervical spine levels appear unremarkable.

IMPRESSION:

Degenerative disc disease at C5-6 as described.

It is the panel's understanding that these are relatively innocuous findings, revealing no nerve root impingement, and we are unable to conclude that the degenerative conditions which are revealed on the MRI were causing problems to the worker or impacting her recovery.

The panel places significant weight on the February 14, 2016 opinion of the WCB medical advisor, who opined, in part, as follows:

[The worker] has been seen by several specialists and tenderness has really been the only finding. She has had a normal NCS and an MRI showing degenerative changes at C5-C6, no nerve root impingement…

There are multiple factors that can lead to prolonged reporting of symptoms…The worker does have some minor degenerative changes on MRI but that's not likely to cause a delay in recovery. It is not clear if any of the other factors are playing a role, but none would be work related or considered pre-x [pre-existing].

The employer's advocate argued that the pre-existing degenerative condition was "the only logical reason for the prolongation of the claimant's symptoms." The panel finds this argument to be speculative, and not consistent with the wording or intent of the Policy with respect to cost relief.

The employer has submitted that the recovery period from the workplace injury had already been prolonged at the time of the MRI, thereby suggesting that the claim had gone on too long. The panel notes that section 1(a)(i) and Schedule A of the Policy specifically provide for cost relief where a claim is caused or significantly prolonged by a "pre-existing condition." A concern or the assertion that a claim has gone on too long is not in itself a basis for cost relief.

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 for cost relief therefore does not satisfy the requirements of the Policy, and the employer is not entitled to cost relief.

The employer's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 23rd day of March, 2017