The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") to deny cost relief. A file review was held on October 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 when he slipped and fell on ice landing on his tailbone at approximately 6:30 p.m., and again at approximately 6:45 p.m., on January 25, 2013. On January 26, 2013, the worker attended a hospital facility and x-rays were taken of his pelvis and sacrum which showed a transverse fracture through the first sacral segment, with minor posterior displacement and angulation of the distal fragment. The claim for compensation was accepted by the WCB based on the diagnoses of a coccyx fracture and low back strain. File records showed that the worker attended a physiotherapist for treatment and was seen by a number of specialists for ongoing coccyx and low back pain. The worker also underwent diagnostic testing which included an MRI of his lumbosacral spine and coccyx and a CT scan of the pelvis.

In April 2016, the employer advised the WCB that they were contesting the acceptance of partial wage loss benefits to the worker and asked that the claim be reviewed with respect to cost relief.

On August 24, 2016, a WCB orthopedic consultant was asked to review the claim file and answer questions related to the worker's medical status. On September 1, 2016, the orthopedic consultant stated, in part, that:

There is a degenerative pre-existing condition which contributes to chronic low back pain. MRI dated 20-June-2013 demonstrated multi-level degenerative lumbar disc disease (DDD). Chronic low back pain caused by DDD is considered to (sic) a contributor to current symptoms.

On September 29, 2016, in response to a request for clarification, the WCB orthopedic consultant further stated that:

1. The workplace injury caused a fracture of the coccyx, which went on to become a non-union of the fracture. The pre-existing degenerative disc disease (DDD) did not have an impact upon healing of the fracture. It is known that many fractures of the coccyx go on to non-union or fibrous union for reasons that cannot be determined.

2. The continuing symptoms are considered to be the result of the combination of the pre-existing DDD and the non-union of the fracture of the coccyx.

In a letter dated October 5, 2016, Compensation Services advised the employer that cost relief would not be granted, as a review of the medical information did not identify a pre-existing condition that had materially contributed to a delay in recovery.

On November 8, 2016, the employer appealed the October 5, 2016 decision to Review Office. The employer referred to the comments made by the WCB orthopedic consultant on September 1 and September 29, 2016 to support that the pre-existing condition played a significant role in recovery and on-going symptoms, and that the claim was worthy of cost relief.

On December 8, 2016, Review Office confirmed that there was no entitlement to cost relief for a pre-existing condition. Based on the WCB's policy regarding cost relief/cost transfers, Review Office determined that the employer was not entitled to 100% cost relief as it found that the worker's claim was not due to a pre-existing condition (i.e. primary cause).

Review Office noted that for the employer to be eligible for 50% cost relief, time loss on the claim must exceed 12 weeks, and the duration of time an employer accommodates a worker with alternate duties is also factored in. After considering the duration of the claim to date, Review Office determined that this requirement had been met. The other requirement for 50% cost relief is that the "claim is significantly prolonged by the pre-existing condition." The phrase "significantly prolonged" is not defined in the policy.

Review Office found that the ongoing medical management of the claim and the need for workplace restrictions were attributable to the fracture of the worker's coccyx and the non-union, as opined by the various treatment providers and the WCB orthopedic consultant. Although the worker had DDD in his lumbar spine and he reported symptomology in his low back, the presence of this pre-existing condition had not affected the duration of the claim nor impacted recovery of the compensable injury. There was therefore no entitlement to cost relief.

On May 17, 2017, the employer 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 to the Policy states, in part, as follows:

100% Relief

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…

50% Relief

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 legal counsel, who provided two written submissions in support of their appeal.

The employer's position was that the medical evidence on file shows that the worker has pre-existing conditions which have significantly enhanced and prolonged his disability, and ultimately any recovery, and that cost relief in the amount of 50%, at minimum, should be awarded to the employer.

Legal counsel noted that as the worker's lost time was more than 12 weeks, the second part of the 50% cost relief provision was satisfied. Counsel submitted that the first part of that provision was also satisfied, as the worker had a history of medical conditions, specifically DDD and diabetes, which had a significant effect on the worker's condition.

It was submitted that the June 20, 2013 MRI revealed findings of moderate DDD and osteoarthritis, and various medical records indicate that these pre-existing conditions had a direct impact on the prolonged nature of the worker's condition. Reference was made to the WCB orthopedic consultant's reports dated September 1 and September 29, 2016, where the consultant opined that "There is a degenerative pre-existing condition which contributes to chronic low back pain" and that "the continuing symptoms are considered to be the result of the combination of the pre-existing DDD and the non-union of the fracture of the coccyx." (counsel's emphasis) Reference was also made to a September 3, 2013 report from an orthopedic specialist who noted that nearly nine months post-accident, the worker "does have degenerative changes in the lumbosacral spine" and "the fracture reported in the sacrum should have healed by now."

Counsel also submitted that the worker's pre-existing diabetes played a significant role in prolonging the worker's recovery and enhancing his condition. Counsel stated that it is a well-known fact that diabetes inhibits the healing process of bone fractures and soft tissue healing, and referred to a peer-reviewed research article in support of that assertion. If not for the worker's diabetes, the coccygeal fracture would have healed completely, or at least more rapidly, and avoided any type of non-union.

Counsel further submitted that the most recent medical reports on file confirm that the worker's pre-existing DDD and diabetes have significantly prolonged the worker's recovery and enhanced his condition. Four years after the accident, the worker is still complaining of pain in his coccyx and lower back, and objective findings in the medical records indicate that he is still tender over the lower back/tailbone.

In conclusion, it was submitted that it would be truly unreasonable to overlook the elapsed time and the effect of the worker's pre-existing conditions on his condition and recovery, and the employer's appeal should be allowed.

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 or conditions which significantly enhanced and prolonged his disability and ultimate recovery. 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, for the reasons that follow.

At the outset, the panel notes that while the employer has stated that they should be awarded cost relief in the amount of 50% "at minimum", there was no suggestion in their submissions on appeal that a pre-existing condition was the primary cause of the worker's accident or injury 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. The employer's position is that the worker had two pre-existing conditions which satisfied these requirements: DDD and diabetes.

With respect to the first of these conditions, the panel is satisfied that the medical information on file establishes that the worker had a pre-existing condition of DDD in the lumbar spine. The panel notes that the June 20, 2013 MRI of the lumbosacral spine and coccyx shows multilevel DDD of the lumbar spine, with the stated impression being:

1. Degenerative changes are noted in the lower lumbar spine as described with potential sites of nerve root irritation indicated. 2. Posteriorly angulated fracture of the coccyx.

The panel is not satisfied, however, that the claim has been significantly prolonged by the worker's pre-existing DDD. Based on the medical information on file, the panel is unable to find a causal connection between the worker's DDD and his compensable injury.

The panel places significant weight on the opinions of the WCB orthopedic consultant dated September 1 and September 29, 2016. The panel places particular weight on and accepts the consultant's comments in his September 29 opinion, where he opined:

The workplace injury caused a fracture of the coccyx, which went on to become a non-union of the fracture. The pre-existing degenerative disc disease (DDD) did not have an impact upon healing of the fracture. It is known that many fractures of the coccyx go on to non-union or fibrous union for reasons that cannot be determined. (Emphasis added)

The panel also accepts the WCB orthopedic consultant's subsequent comment that the worker's "continuing symptoms are considered to be the result of the combination of the pre-existing DDD and the non-union of the fracture of the coccyx." While the employer has argued that this comment supports their position, the panel disagrees. The panel notes that the comment must be read in conjunction with the preceding paragraph, including the statement that the pre-existing DDD did not have an impact on the healing of the fracture.

The evidence further indicates and the panel finds that the ongoing management of the worker's claim and workplace restrictions are related to the accepted fracture of the worker's coccyx and the non-union of that fracture, and not his pre-existing DDD.

In summary, the panel acknowledges the worker's ongoing complaints of low back pain, but is unable to relate those complaints and the worker's continuing symptoms of low back pain to his compensable injury. The panel therefore finds, on a balance of probabilities, that the worker's claim has not been significantly prolonged by his degenerative DDD.

The employer has also argued that the worker has a pre-existing condition of diabetes. The panel is unable to make that finding. A pre-existing condition is a medical condition that existed prior to the compensable injury. The panel has not identified any medical evidence on file to indicate that the worker's diabetes existed prior to the accident or compensable injury. Initial medical reports do not refer to diabetes or any history of diabetes. The first reference on the claim file to diabetes appears in a report from the consulting orthopedic specialist dated October 15, 2013 which states "diabetic on pills." In his report of the call-in examination of the worker on November 20, 2014, the WCB orthopedic consultant noted that the worker had been on oral hypoglecemic for diabetes since September 2013, which was more than seven months after the accident.

There is also no evidence that the worker's diabetes contributed to or prolonged the worker's compensable injury or recovery from that injury. Whether a claim has been significantly delayed or prolonged depends on the facts of each case. The panel has considered the research article which was referred to by employer's counsel, but is unable to find that it is evidence that a relationship exists in this case between the worker's compensable injury or the duration of the claim and the worker's diabetes.

The panel recognizes that the employer may feel frustrated by the claim and the duration of the claim. The Policy is specific, however, as to the situations in which cost relief may be available. In our view, the employer's request for relief cannot be granted based on the facts of this case.

Based on the foregoing, the panel finds that the worker's claim was not primarily caused or significantly prolonged by a pre-existing condition. 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 dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 13th day of December, 2017