The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the effective date for the implementation of cost relief was April 21, 2011. A hearing was held on July 18, 2017 to consider the employer's appeal.

Issue

Whether or not the April 21, 2011 effective date for the implementation of cost relief has been properly determined.

Decision

That the April 21, 2011 effective date for the implementation of cost relief has been properly determined.

Background

The worker has an accepted claim with the WCB for compound fractures of his second, third, fourth and fifth fingers of his left hand which he sustained in a work-related accident on November 17, 2009.

On May 25, 2016, the worker's claim was considered by Review Office when the accident employer appealed the decision made by Compensation Services that they were not entitled to cost relief. Following its review of the file information, Review Office determined that the employer was entitled to cost relief. Review Office stated:

The Review Office determines the malrotation of the worker's index finger was a further injury subsequent to the compensable injury as it arose out of the delivery of treatment (surgery) for the original compensable injury. The malrotation was caused was (sic) by the surgical repair and not by the workplace accident.

The worker underwent surgical repair of his fractures three days following the workplace accident and the evidence is not definitive as to whether the CRPS was a sequela of the compensable injury or arose out of the delivery of treatment (surgery). We note the worker's difficulties became more pronounced after the April 2011 surgery and it was at that time that the surgeon recommended a referral to a pain clinic. Thus, Review Office determines, on a balance of probabilities, the CRPS diagnosed in July 2011, was a further injury subsequent to the compensable injury as it arose out of the delivery of treatment (April 2011 surgery) for the original compensable injury.

On July 18, 2016, Review Office confirmed that the employer was entitled to 100% cost relief for all claim costs as of April 21, 2011. By letter dated July 19, 2016, the employer was notified that the worker's difficulties became pronounced after the April 2011 surgery and it was at that time that the surgeon recommended a referral to a pain clinic.

On July 19, 2016, the employer's representative suggested to the WCB that cost relief should commence on the date that the worker would have recovered from his first surgical procedure, if not for the malrotation.

On July 26, 2016, a WCB plastic surgeon medical advisor was asked to comment on the typical recovery time from the worker's initial surgery of November 20, 2009. The medical advisor responded as follows:

The postoperative course following k-wiring of index, middle and ring finger proximal phalanx fractures typically consists of approximately 4-6 weeks of immobilization, followed by a course of hand therapy once the k-wires are removed. Recovery is typically in the matter of 3-4 months.

By letter dated September 22, 2016, the employer was advised by Compensation Services that further cost relief was not applicable in this case. The case manager stated:

In view of Policy 44.10.80.40 Further Injuries Subsequent to a Compensable Injury; clarification has been provided in that the only time a complication from surgery constitutes a further subsequent injury, within the meaning of the Policy and Guidelines, is when there is surgery on an incorrect body part or a documented error in the conduct of the approved surgery. All other consequences and complications of surgery are considered to be directly related to the original workplace injury.

In conversation with a WCB Medical Advisor I determined that malrotation can be a combined effect of the initial injury and treatment for the original injury.

In this case it was not an error in the conduct of the approved surgery and as such I find that further cost relief is not applicable.

On December 5, 2016, the employer's representative appealed the decision dated September 22, 2016 to Review Office. The employer's position was that cost relief should be implemented back to the normal recovery period for the original fracture injuries and the first related surgery. Using the maximum period of normal recovery for the compensable injury, the worker would likely have recovered by March 20, 2010.

On February 1, 2017, Review Office determined that the effective date for the implementation of cost relief was April 21, 2011. Review Office stated in its decision that the costs of the claim beyond March 20, 2010 were not solely due to the malrotation. Historical medical evidence on file supported that the worker continued to suffer the effects of his compensable injury beyond March 20, 2010 which were exclusive of the malrotation.

Review Office noted the policy states that "the additional costs attributable to the further injury may be eligible for cost relief…" The issue to be determined was when did the duration of benefits exceed what would have been paid had the malrotation not occurred. The file evidence did not provide an exact date as to when the compensable injury was no longer contributing, to a material degree, to the costs of the claim. Review Office found it reasonable to conclude that as of the April 21, 2011 date of the surgery to repair the malrotation, the worker's disability (and therefore the claim costs) was due to the further injury subsequent to the compensable injury.

On February 7, 2017, the employer's representative appealed Review Office's decision to the Appeal Commission and a hearing 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 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy"), states in part:

A. POLICY 

A further injury occurring subsequent to a compensable injury is compensable: 

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or 

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or 

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

WCB Policy 31.05.10, Cost Relief/Cost Transfers (the "Cost Relief 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 situations in which cost relief is available to eligible employers are set out in section A.1.a) of the Policy, and include:

iii) When a subsequent compensable injury occurs outside the workplace while the worker is already receiving benefits and the second accident extends the period of time loss. The cost relief criteria and method of cost allocation are described in Schedule C.

Schedule C of the Cost Relief Policy, states, in part, as follows: 

When a worker is receiving benefits and the duration of benefits is extended due to a further separate injury which is compensable under policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, the additional costs attributable to the further injury may be eligible for cost relief in the following circumstances:

(i) when the further injury arises out of a situation over which the WCB exercises direct specific control; or

(ii) when the further injury arises out of the delivery of treatment for the original compensable injury. Relieved costs 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 its co-owner and an advocate. The advocate provided the panel with a detailed written submission which she read into the record. The advocate went through a history of the file following the November 2009 work injury, noting that the worker had returned to work with the employer by February 2010 in a modified duties position and had been increasing his hours, with an originally projected return to full 8 hour shifts as of March 1, 2010. She indicated that this recovery period was consistent with the WCB plastic surgeon medical advisor's later comments, on August 18, 2016, that the normal recovery period for the worker's injuries would be 3-4 months, which conservatively would suggest a March 20, 2010 recovery date, 4 months after the November 20, 2009 first surgery.

The advocate noted that the malrotation of the worker's left index finger was first identified in April 2010, and she suggested that the worker's symptoms increased as a result, leading to the recommended derotation surgery which took place in April 2011. This condition was accepted by Review Office as being a further injury arising out of the compensable injury and the first surgery. The employer's position was that it was this newly identified condition that significantly impacted the duration of the claim after March 20, 2010, up to the point of the second surgery for the further injury. This would entitle the employer to earlier cost relief, either the plausible March 20, 2010 date or a proximate date in that period of time.

The advocate's position was that there is no medical evidence to support that the worker's other injured fingers (middle and ring) were the cause of his ongoing pain after March 2010. She relies on the WCB medical advisor's comments that "based on the medical information on file, the malrotation at the left index finger (complication) significantly delayed recovery from the initial finger fracture, in that a second surgery was required (April 21, 2011)."

The advocate also referenced medical reports identifying earlier signs of CRPS as early as July or August 2010, suggesting that these symptoms began to increase only after the malrotation complication developed, with further increases in these symptoms after the April 2011 surgery.

The advocate also identified two other reasons or sources for cost relief. She relied on a WCB medical advisor's comments, following a November 2010 call-in examination, that the worker's left hand deteriorated because he was cut off from physiotherapy benefits too soon. She further noted that the file documents show significant WCB "miscommunication" with the surgeon that led to a 9 or 10 month delay in getting the second surgery. The advocate suggested that it was not fair for the employer to bear the additional financial costs from these sources and to not grant cost relief was against policy.

Analysis

For the employer to be successful in this appeal, the panel would need to find that the worker's second identified condition (the further injury of the malrotation of the left index finger) extended the duration of benefits that would otherwise have been provided for the original compensable injury and surgery. After consideration of all the evidence on file and the submissions made at the hearing, the panel was unable to make this finding. Our reasons follow.

At the outset, the panel notes that the advocate introduced several arguments for potential cost relief for the employer, beyond the malrotation issue. The panel will deal with these issues first.

• The advocate suggested that the worker's CRPS was first suggested as early as July or August 2010 and was a consequence of the malrotation complication. As it was later the basis for cost relief after the second surgery, there would be a basis for providing cost relief beforehand as well. The panel notes, however, that this diagnosis was specifically tested for and rejected by the WCB medical advisor during a call-in examination of November 12, 2010. Further, the Review Office decision of May 25, 2016 specifically addressed the timing of the onset of the CRPS condition and found that it developed subsequent to the April 2011 surgery. The panel notes that this decision was not appealed to the Appeal Commission. Accordingly, the panel finds that it cannot grant cost relief for the earlier period on this basis.

• The advocate suggested that the worker's claim duration was significantly affected by the discontinuance of physiotherapy while the worker awaited the second surgery, as noted by a WCB medical advisor. She also noted that there were delays in setting the date for the second surgery because of miscommunication between the WCB and the surgeon regarding authorization of the second surgery which led to a 10 month delay in the surgery. It was her position that the delay in surgery led to a delay in recovery, and that holding the employer responsible for these additional costs for reasons outside of their control was arbitrary and not supported by board policy. The panel acknowledges the employer's frustration but notes that it can only apply cost relief using the criteria identified in the Cost Relief Policy. In the panel's view, based on our review of the policy, delays in medical treatment and the prolongation of a claim's duration because of claim management issues are not identified in the Cost Relief Policy as a basis for granting of cost relief. As such, the panel cannot grant cost relief on these grounds.

Dealing with the malrotation injury which was first formally identified in April 2010, the panel finds that the duration of benefits was not prolonged in the time frame between the two surgeries.

The panel acknowledges that the WCB plastic surgeon medical advisor commented that recovery from the first surgery would typically take 3-4 months. The panel is also aware that this is a reference to norms for recovery, and that patients may have different experiences of recovery that may be longer or shorter than the predicted norms. Our analysis therefore turned to the medical evidence on the file, to determine when or if the worker recovered from the injury and first surgery alone, and whether the malrotation influenced the duration of benefits paid to the worker before the second surgery, when the benefits were restored for the malrotation surgery and CRPS condition.

The panel notes the position put forward by the employer, that there is no medical evidence that the worker hadn't resolved by March 20, 2010, given that the WCB plastic surgeon medical advisor chose only to describe the typical recovery period for "full" recovery and didn't point to any compensable reason why extra time for recovery should be considered. The panel finds, however, that the WCB medical advisor's comments have been interpreted too narrowly by the employer, and that there is ample medical evidence on file that the worker's original surgery was followed by a slow recovery and ongoing loss of function in multiple fingers right up to the second surgery that had little to do with the malrotation issue that was identified in March 2010 and later treated in April 2011: 

• The WCB plastic surgeon medical advisor's response of July 13, 2016 was to a broad question asking about the combined effect of the diagnosis of the left index finger AND the diagnosis of CRPS impacting the recovery of the compensable diagnosis. The medical advisor's comments noted significant delays in recovery from the first surgery, in that the second surgery was eventually required (and further benefits being provided). In the panel's view, the medical advisor was not asked for and did not provide any information specifically regarding duration of benefits prior to the second surgery, and focused on CRPS and not the malrotation as being a possible pain source. 

• The WCB plastic surgeon medical advisor's response of August 18, 2016 was to a limited question: "Please offer your opinion as to typical recovery time from worker's initial surgery of November 20, 2009" to which the surgeon responded that the worker's "postoperative course…typically consists of approximately 4-5 weeks of immobilization, followed by a course of hand therapy once the k-wires are removed. Recovery is typically in the manner of 3-4 months." In the panel's view, the surgeon was only asked about typical recovery time and was not asked for and did not provide a file review or comment on the worker's actual functional recovery from the first surgery. 

• Regarding the worker's functional recovery from the first surgery, the panel notes that the worker was treated by a physiotherapist who provided highly detailed reports to the WCB starting soon after the first surgery and continuing through June 2010 and resuming again in late July 2010. These reports cover several months before the first report of malrotation in March 2010 and afterwards. The panel found the level of detail from a single health care provider to be very helpful in tracking the progress of the worker's condition throughout the period. It is noteworthy that: 

o the first reports describe edema to digits 2-5; 

o by February 25, findings of reduced ROM (range of motion) and strength are noted in digits 2-5; 

o March 11 (when the scissoring is first noted), a note is made of slow progress; 

o April 16, a note is made of decreased strength and ROM; o a discharge report of June 16 notes that ROM has plateaued, with grip tests showing 113 R vs. 69 L; 

o the physiotherapist's second initial report of July 28 indicates subjective complaints of cramping in hand, paresthesia, throbbing and ++ pain of finger movements, with findings of difficulties in spreading fingers, can only make ½ fist, and ++ pain on passive ROM and gentle palpation of digits 2-4. 

o The WCB medical advisor's November 1, 2010 call-in examination described pain complaints over palm/palmar aspects of digits 2-4, and findings that ROM was significantly decreased at proximal interphalangeal joints of fingers 2-4.

In the panel's view, the medical evidence discloses that the worker had compound fractures to multiple fingers and a surgical repair to those fingers on November 20, 2009. The subsequent medical evidence indicates that the worker continued to demonstrate loss of ROM and strength in multiple fingers throughout 2010 and, based on the significance of the findings on November 1, 2010, to the date of the second surgery in April 2011. The worker had not recovered in the "typical" time frame for this type of injury and the worker was being provided benefits throughout this period for his multiple finger injury and the first surgery for the compound fractures.

The panel notes that while the malrotation issue was identified in March 2010 and later operated on in April 2011, the medical evidence does not suggest that the malrotation, in and of itself, extended the duration of benefits in that period. In the panel's view, the worker would have been on benefits regardless.

The panel therefore finds, on a balance of probabilities, that the April 21, 2011 effective date for the implementation of cost relief has been properly determined.

The employer's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 4th day of August, 2017