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 with respect to the worker's compensation claim.  A file review was held on August 8, 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 September 16, 2015, the employer submitted an Employer's Accident Report with the accident date of August 20, 2015 and the date the accident was reported to the employer as September 16, 2015.

Subsequent file information contains memorandums related to telephone conversations that took place between WCB staff and the worker, the worker's supervisor and a co-worker. Medical information was also obtained from the worker's family physician and a clinical psychologist. The worker was interviewed by a WCB psychological consultant at a call-in examination at the WCB offices on January 28, 2016.

In a decision dated February 29, 2016, the worker was advised that in the opinion of the WCB, she had recovered from her compensable psychological injury and was not entitled to the costs associated with medical treatment or time loss from work beyond March 28, 2016. The adjudicator's decision was based on information that was outlined in the WCB call-in notes dated

January 28, 2016, and in particular, on conclusions that the worker's current symptoms did not meet the criteria for Post-Traumatic Stress Disorder ("PTSD"), that the reported symptoms were primarily related to family issues, actions of co-workers and management within the workplace and worry regarding her financial situation, and that the current diagnosis of Adjustment Disorder with depressed mood would not, on a balance of probabilities, be related to the workplace incidents.

In a further decision letter dated March 22, 2016, Compensation Services wrote the accident employer to advise that the claim had been reviewed with regards to cost relief, and a pre-existing condition which had significantly prolonged the recovery of the compensable injury had not been identified. Cost relief was therefore not applicable.

On June 28, 2016, the issues of claim acceptability and the payment of wage loss benefits were considered by Review Office, at the employer's request. Review Office confirmed that the worker's claim for compensation was acceptable, as they found that the worker had experienced an acute reaction to traumatic events which resulted in a psychological injury. Review Office also confirmed that the worker had a loss of earning capacity and need for medical aid beyond August 20, 2015 in relation to the compensable injury.

On January 10, 2017, the employer's representative asked Review Office to consider the worker's claim regarding cost relief. The representative stated, in part:

The evidence on file indicates that there were multiple pre-existing and non-compensable conditions which affected the claimant's recovery from the workplace injury. Furthermore, the evidence clearly indicates that those non-compensable conditions significantly prolonged her recovery. As such, the circumstances of this claim meet the criteria of WCB's Cost Relief policy…

On January 25, 2017, Review Office determined that there was no entitlement to cost relief due to a pre-existing condition. Review Office stated that they did not find that the duration of the claim was significantly prolonged due to a pre-existing condition. Although there was mention of the worker having psychological treatment prior to August 2015 due to the effects of a motor vehicle accident in 2009, Review Office was of the opinion that this history did not prolong the benefits paid in relation to her workplace accident.

On April 24, 2017, the employer's representative appealed Review Office's decision dated January 25, 2017 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. 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.

"Pre-existing condition" is defined in WCB Policy 44.10.20.10, Pre-existing Conditions, as "a medical condition that existed prior to the compensable injury."

Employer's Position

The employer was represented by an advocate, who provided a written submission in support of their appeal.

The employer's position was that the circumstances of the case clearly meet the Policy criteria for the granting of employer cost relief. In their submission, the evidence demonstrates that the worker had multiple non-compensable pre-existing factors which affected her accepted work injury, and these pre-existing factors significantly prolonged her recovery from her injury and inflated the claim costs.

The advocate relied in particular on the notes from the January 28, 2016 call-in examination by the WCB psychological consultant. He submitted that the consultant outlined numerous pre-existing psychological conditions which had a direct impact on the worker's work injury and several concurrent and pre-existing issues which caused the worker psychological difficulty. He noted that the worker had an earlier diagnosis of PTSD, and submitted that it was generally accepted that a prior diagnosis of PTSD leaves a person more prone to subsequent episodes of PTSD. The advocate highlighted and quoted information and statements from the WCB psychological consultant's file notes in support of their position.

It was submitted that while a review of the file reveals that the claim was ultimately accepted for PTSD, supposedly in respect of a particular incident, the evidence on file shows that the worker had psychological problems unrelated to the incident, including several personal issues, and that the non-compensable psychological issues negatively affected her recovery from the PTSD.

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 multiple pre-existing conditions which significantly prolonged her recovery from the accepted workplace injury. For the employer's appeal to be successful, the panel must find that the employer's request for cost relief meets the requirements of section 1(a)(i) and Schedule A of the Policy. The panel is unable to make that finding, for the reasons that follow.

The panel notes that the employer has not argued that the worker's accident or injury was caused by a pre-existing condition or that the criteria for 100% cost relief have been met.

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. We are unable to make that finding.

The worker has an accepted claim for an acute reaction to two traumatic events which resulted in a psychological injury. The employer's position is that the worker has multiple non-compensable pre-existing factors which affected her work injury and significantly prolonged her recovery from that injury. The panel notes that the employer's submission is framed in general terms and provides little or no detail as to which psychological or other unrelated problems or issues they are relying on or how such problems or issues have negatively affected the worker's recovery or prolonged the claim.

The advocate has quoted the WCB psychological consultant's reference in her call-in notes to the worker having "apparently…been diagnosed with PTSD previously, following a 2009 motorcycle accident." The advocate submitted that a prior diagnosis of PTSD leaves a person more prone to subsequent episodes of PTSD. To the extent that the employer is suggesting that a previous diagnosis of PTSD led or contributed to the worker suffering a subsequent episode or recurrence of her PTSD, the panel is unable to make that finding.

File information shows that there was limited reference to the worker's 2009 motorcycle accident up until the time of the January 28, 2016 call-in examination. The events which were raised and discussed at the beginning of the claim had no connection to the 2009 motorcycle accident and did not involve similar experiences. The current diagnosis is based on two specific events, in 2014 and 2015, respectively, where the worker was providing services in her role as a medical service provider. The information on file indicates that the worker's 2009 PTSD diagnosis was in abeyance, and neither the WCB psychological consultant's notes nor other information on file indicate that the worker was experiencing flashbacks to her 2009 motorcycle accident. As reported by the psychological consultant in her notes, the worker noted that "My stress is not about my motorcycle accident. I've left that in the past." The worker herself therefore did not see the 2009 accident as a factor in her current situation or the duration of the claim.

The panel notes that a number of the factors or difficulties which the WCB psychological consultant referred to in her call-in notes as affecting the worker were not medical diagnoses or conditions. These included mood/affective changes of anger and sadness, predominantly related to family issues; the actions of coworkers and management at her workplace; and worry about her financial status and job security. A pre-existing condition is a medical condition that existed prior to the compensable injury. The panel is satisfied that the above factors are not pre-existing conditions as contemplated under the Policy. Specifically, the panel finds that the worker's family, financial and workplace issues are not related to the claim and are not pre-existing medical conditions.

The panel is further satisfied that there has been no significant delay or prolongation of the worker's claim due to a pre-existing condition or otherwise. Whether a claim has been significantly delayed or prolonged depends on the facts of each case. The panel notes that the claim was filed on September 16, 2015, less than one month after the accident date of August 20, 2015; the worker was referred to and began treatment by a clinical psychologist on October 7, 2015, some three weeks after the claim was filed; and the worker was seen at a call-in examination by the WCB psychological consultant on January 28, 2016. The panel finds that the claim was of a relatively short duration, and that investigation, treatment and resolution of the claim were timely.

The psychological consultant noted that based on the worker's report and the report of her treating psychologist, the worker had made significant progress and recovery, and had largely recovered from her original symptoms and diagnosis. As the worker appeared to have occasional recollection and difficulties associated with the 2015 workplace event, some additional transitional counselling was recommended and approved. The worker was therefore advised that responsibility for medical treatment or wage loss benefits would not be accepted beyond March 28, 2016.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's claim was not significantly prolonged, nor was her recovery negatively affected, by a pre-existing condition or conditions. The employer's request for cost relief does not satisfy 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
P. Walker, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 3rd day of October, 2017