The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that it was not entitled to cost relief. A file review was held on May 16, 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 "stress" that he related to a number of incidents that occurred during the course of his employment as a paramedic supervisor. The date of accident was recorded as being April 1, 2013 and the WCB claim was filed on May 15, 2014. On December 1, 2016, the WCB's Review Office accepted that the traumatic events at work caused the worker to suffer a psychological injury and his claim for compensation was accepted. The compensable diagnosis is post-traumatic stress disorder ["PTSD"].

On June 18, 2015, the employer's representative requested that the WCB grant the employer cost relief as the criteria outlined under the WCB's Cost Relief policy had been met. The representative noted that there were "numerous pre-existing and other non-compensable conditions present which are materially contributing to the claimant's prolonged recovery."

The WCB obtained up-dated medical information prior to responding to the employer's request for cost relief.

In a decision dated May 25, 2016, the employer was advised by Compensation Services that there was no evidence of a pre-existing condition that was materially affecting the worker's recovery from his compensable injury and as such, there was no basis to grant cost relief due to a pre-existing condition.

In a memo to file dated August 19, 2016, the case manager referred to a medical report on file dated June 5, 2014 which indicated that the worker was diagnosed and treated for PTSD for approximately six months in 1992. The case manager stated: "Total duration exceeded is beyond 12 weeks. This would be considered a significant prolongation of the duration of disability. CM is of the opinion that the criteria and intent of the cost relief policy has been met and the employer is entitled to 50% cost relief." This was not communicated to the employer but was referred for review by a manager.

On September 2, 2016, a manager with Compensation Services wrote the employer's representative to advise that the claim had recently been re-reviewed and a pre-existing condition had not been identified that had significantly prolonged the recovery of the compensable injury. On November 16, 2016, the employer's representative appealed the decision to Review Office.

On December 1, 2016, Review Office confirmed that the employer was not entitled to cost relief. Review Office noted that the worker had several risk factors at the time of his injury; however, there was no indication that the actual diagnosis of PTSD existed prior to the date the worker filed his claim. It was only established after a series of medical assessments had taken place. It was concluded by Review Office that the worker's PTSD from 1992 had resolved.

Review Office placed weight to the following WCB medical opinion dated August 30, 2016:

Based on the information to file, there is no evidence of a pre-existing condition that has delayed the worker's recovery. He had a previous diagnosis of PTSD, but reportedly recovered and, in 2013, had a recurrence. There are significant life stressors noted but no evidence of any pre-existing diagnosis that would delay the worker's recovery.

Review Office found no evidence that the worker's claim was either caused by a pre-existing condition or that a pre-existing condition significantly prolonged the worker's recovery from the compensable injury and therefore the employer was not entitled to cost relief. On December 16, 2016, 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.

This appeal deals with cost relief. The employer is seeking cost relief on this claim on the basis that the worker has a pre-existing condition.

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."

The Policy provides, in part:

1. a) Cost relief is available to eligible employers in the following situations:

(i) When the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition. The cost relief 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 employer advocate who provided a written submission for consideration by the panel. The employer's representative submitted that their request for cost relief was both warranted and met the criteria of the WCB Policy.

The employer representative submitted, in part, that:

• once an individual has been diagnosed with PTSD, he/she is at a much higher probability of being diagnosed with recurrent PTSD in the future once he/she is exposed to traumatic events.

• the WCB's psychological advisor stated that the 2013 PTSD (ostensibly caused by the accepted work accident) was a recurrence of his old PTSD.

• the worker has been involved in multiple work-related traumatic events over his career. Having said this, the evidence on file cites a few of these incidents, in particular, as being major contributors to the worker's onset of PTSD.

• the evidence on file clearly demonstrates that the worker has multiple non-compensable issues that grossly affected his PTSD and that those issues pre-existed the work injury.

• substance abuse is always multi-factorial in origin and there is absolutely no way to ascertain that the worker's current PTSD was the sole cause of his substance abuse.

• it should be noted that many of these aggravating factors have absolutely nothing to do with the WCB accepted PTSD condition, yet they have been cited by the treating psychologist as a negative factor in his recovery from the work related PTSD.

• in summary, there are multiple non-compensable psychological conditions and factors which are negatively impacting the worker's recovery from this injury.

The employer's representative asked that cost relief be granted to this employer.

Worker's Position

The worker did not participate in this 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 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 not able to make this finding.

The panel finds that the worker does not have a pre-existing condition which significantly affects the duration of the claim. In making this determination, the panel relies upon the August 30, 2016 opinion of the WCB psychological consultant who opined that:

Based on the information to file, there is no evidence of a pre-existing condition that has delayed the worker's recovery. He had a previous diagnosis of PTSD, but reportedly recovered and, in 2013, had a recurrence. There are significant life stressors noted but no evidence of any pre-existing diagnosis that would be delaying the worker's recovery. [Treating psychologist], in her report of June 5, 2014 does give another diagnosis of "low level alcohol dependence," she indicated in that same report that she had made that diagnosis on April 2, 2013, concurrently with the diagnosis of PTSD. There is no report that this alcohol dependence was pre-existing, although its co-occurring presence with the PTSD may have an impact on the length of recovery.

The panel specifically relies upon the psychological consultant's opinion that the worker had recovered from his previous diagnosis of PTSD and that there is no evidence of a pre-existing medical condition that has significantly delayed recovery. The panel notes that there are factors which are affecting the worker's recovery, but that these factors are not a pre-existing condition. Specifically, the panel finds that the worker's marital stressors and substance abuse are not pre-existing medical conditions.

The panel finds, on a balance of probabilities, that the worker's claim was not caused by a pre-existing condition and was not significantly prolonged by a pre-existing condition.

The employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of May, 2017