Decision #07/18 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the employer is not entitled to cost relief. A file review was held on November 28, 2017 to consider the employer's appeal.
Whether or not the employer is entitled to cost relief.
The employer is not entitled to cost relief.
The worker was employed as a long-haul truck driver when he lost his balance and fell while pulling on a frozen trailer door on his truck, sustaining a right ankle fracture and a back strain on February 22, 2013. He had hardware fixation surgery on his ankle on December 4, 2013, which hardware was removed on July 15, 2014.
A Functional Capacity Evaluation (FCE) was conducted on December 2, 2014 and the worker's physical capabilities related to his ankle were identified. His employer advised that it was unable to accommodate his restrictions.
WCB referred the worker for vocational rehabilitation services in January, 2015. The worker's compensable restrictions were made permanent by WCB on March 10, 2015. WCB continued to provide vocational rehabilitation services to the worker as the employer was unable to accommodate long term restrictions.
WCB advised the employer's representative on April 13, 2017 that the employer would not be entitled to cost relief. On April 19, 2017, the employer's representative requested a reconsideration of WCB's decision, stating:
"We believe that evidence supports that the claimant's documented pre-existing condition [name of condition] has undoubtedly prolonged his recovery from the work injury and has prolonged vocational rehabilitation efforts, thereby resulting in both increased claims costs and in a prolonged resolution of this claim."
On June 9, 2017, Review Office determined that the employer was not entitled to cost relief. Review Office gave consideration to a WCB medical advisor's July 15, 2013 opinion that "There is no evidence that a pre-existing condition (name of condition) is delaying recovery; and there is no evidence that the workplace injury materially affected the (pre-existing condition)." Review Office also found that the worker required a long period of vocational rehabilitation in order to re-enter the job market as he was deemed to have permanent restrictions that his employer could not accommodate, which made up a portion of the costs of the worker's claim.
On June 9, 2017, the employer's representative appealed Review Office's decision to the Appeal Commission. The employer's representative submitted further information on October 19, 2017 and a file review was held on November 28, 2017.
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.
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.
The employer was represented by an employer advocate. In a written submission dated October 19, 2017 the employer's representative submitted, in part, that:
…we believe that the medical and other evidence strongly demonstrates that the claimant's pre-existing condition negatively affected his recovery from the workplace injury, significantly prolonged his recovery and thereby inflated the claim's costs.
The claimant has a pre-existing diagnosed condition of [name of condition]. [The pre-existing condition] is a far reaching medical condition which is well known to have a gross effect upon a person's body and overall functionality. Furthermore, [the pre-existing condition] is well known to exacerbate subsequent medical injuries and medical conditions and prolong recovery from same. As such, it defies logic that the claimant's pre-existing condition would not have impacted his work injury.
It is also evident that the claimant's [pre-existing condition] impacted and prolonged vocational rehabilitation efforts, thereby resulting in both increased claim costs and in a prolonged resolution of this claim.
While we realize that the claimant's compensable ankle fracture resulted in permanent restrictions, there is evidence indicating the underlying [pre-existing condition] contributed to the non-recovery. Just as importantly, the evidence very much supports that this claim would've long since come to a resolution had it not been for the severe effects of the claimant's [pre-existing condition] upon both his work injury and his physical and vocational rehabilitation.
We would also add that the claimant has gone for psychological testing and treatment and the evidence plainly indicates that those conditions were at least partially caused, and certainly negatively impacted upon the [pre-existing condition]. For all of these reasons we believe that, on a balance of probabilities, this circumstances of this claim meet the criteria of WCB's Cost Relief policy for the granting of employer cost relief.
The worker did not participate in the hearing.
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 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 the Policy, specifically subsection 1(a)(i) of the Policy and Schedule A. The panel is unable to make this finding.
The panel notes that the employer is asserting that the worker's pre-existing condition significantly prolonged the claim. 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 worker's claim.
For the reasons that follow, the panel finds that the employer is not entitled to cost relief under the Policy.
On February 22, 2013, the worker suffered a workplace injury. The accident occurred when the worker lost balance and fell while pulling on a frozen door on his truck. The compensable injuries were noted to be a right ankle fracture (distal fibula) and a back strain. The worker had surgery on his ankle with hardware fixation. Following the surgery, the worker had a boot orthosis and developed secondary problems with his right knee and hip from an antalgic gate. Benefits exceeded 12 weeks.
The panel notes that in 2013 the worker was diagnosed with a pre-existing condition, which is a neuroinflammatory disease that can affect functions of the central nervous system.
The panel notes the worker received medical and chiropractic treatment, physiotherapy, medication, surgery, psychological counselling and vocational rehabilitation services including a neuropsychological assessment to assist in vocational rehabilitation.
The panel also notes that during the claim, the worker had numerous issues including ongoing stress, anxiety, and depressed mood associated with his workplace accident.
Regarding medical information, the panel notes:
• that on July 15, 2013 a WCB medical advisor opined that there is no evidence that the worker's pre-existing condition is delaying recovery. As well, there is no evidence that the workplace injury materially affected the worker's pre-existing condition.
• on May 5, 2016, the WCB Psychological Advisor noted that the worker suffered from an adjustment disorder. She opined that the adjustment disorder was partially due to the workplace injury and was also associated with non-CI-related issues, particularly health issues. She opined that the worker's adjustment disorder "is mild and does not preclude functional expectations."
• a file note dated May 9, 2017 from the WCB medical advisor responsible for Permanent Partial Impairment ratings indicates that he considered the impact of the worker's pre-existing condition on his permanent impairment. He noted:
Pre-existing There is no evidence of a major pre-existing/ coexisting condition in relation to the PPI
The panel finds there were many factors which contributed to the costs of the worker's claim including:
• the nature of the worker's injury • the worker's restrictions • the employer's inability to accommodate the worker • the worker's high income and minimal marketable skills. In particular, the worker required significant upgrading as he did not have a formal level of education in Canada
The panel reviewed the medical information on the file and also the case management notes. While there is some reference to the worker's pre-existing condition, the medical reports and other reports do not attach significance to the pre-existing condition. The panel finds that while the worker's pre-existing condition may have been a factor in the worker's recovery, the evidence does not establish, on a balance of probabilities, that it significantly prolonged the worker's recovery.
The employer's appeal has not met the requirements of the Policy and accordingly the appeal is dismissed.
A. Scramstad, Presiding Officer
M. Kernaghan, Commissioner
R. Hambley, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 11th day of January, 2018