The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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 February 15, 2018 to consider the employer's appeal.

Issue

Whether or not the employer is entitled to cost relief.

Decision

The employer is not entitled to cost relief.

Background

The worker was employed as a long-haul truck driver when he suffered an ST-elevation myocardial infarction (STEMI) on May 3, 2016. He described the incident as:

I was sitting waiting for my escort to escort me on site. He came and he told me where to go and I started to drive and felt a little sharp shooting pain in my chest. When I got to the site, I started to undo the straps for the tarps and I started sweatiing (sic), light headed, dizziness, nausea. I went back to my truck and I tried to relax and drank some cold water. I got out of the truck and just about passed out.

I had my escort call a medic. The medics came and realized I was having a heart attack. I was taken to the hospital.

The worker's claim file was reviewed by a WCB medical advisor who confirmed the worker's diagnosis of a STEMI and further opined:

[The worker] had an ST-elevation myocardial infarction (STEMI) on May 3, 2016 and at angiography the left circumflex coronary artery was found to be 90% occluded. This lesion was considered the culprit lesion responsible for the STEMI and he was treated with a drug-eluting stent with good results…He recovered uneventfully and was discharged home May 8, 2016. The typical recovery time for a STEMI, treated with a stent and with good left ventricular function and no complications, would be in the order of 4 weeks for less strenuous work and 8 weeks for more strenuous duties. Returning to driving may delay a return to work for up to 3 months, depending on the class of license.

The worker was advised by the WCB on August 17, 2016 that his claim was accepted. Payment of wage loss and other benefits started.

On September 21, 2016, the worker was advised by the WCB that he was deemed to be capable of resuming his regular duties ninety days post workplace injury and he was not entitled to further wage loss benefits.

In a discussion with the WCB on August 31, 2017, the employer's representative requested that the worker's file be reviewed as a decision letter was never provided to the employer regarding cost relief and noted their opinion that as the worker had a 90% blocked artery, it was a pre-existing condition that "materially contributed to the delayed recovery."

On September 20, 2017, the WCB advised the employer's representative that based on a WCB's medical advisor's opinion regarding the typical recovery time for a STEMI and the worker's doctor's advice that approximately eleven weeks after the workplace accident, the worker's only complaint was fatigue related to the medications he was taking, it was the WCB's opinion that the worker's pre-existing condition did not significantly prolong the worker's recovery. As such, no cost relief for the employer was warranted.

The employer's representative requested reconsideration of the WCB's decision to deny cost relief to Review Office on September 25, 2017. The employer's representative submitted that the worker would not have suffered the workplace accident if it weren't for the fact that one of his arteries was 90% occluded. The employer's representative argued that the worker's occluded coronary artery was the primary cause of the worker's STEMI with the worker's job duties being the secondary cause.

On October 6, 2017, Review Office upheld the WCB's decision denying the employer cost relief. Review Office accepted that the worker had a pre-existing condition but did not accept that the pre-existing condition was the primary cause of the worker's accident. Review Office found that the worker's performance of his job duties played a significant part in causing his STEMI. Accordingly, Review Office found that the employer was not entitled to 100% cost relief. With respect to 50% cost relief, Review Office did not find that the worker's pre-existing condition contributed significantly to the duration of wage loss benefits paid on his claim.

The employer's representative filed an application with the Appeal Commission on October 18, 2017. A file review was held February 15, 2018.

Following the review, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. The parties provided written comments on June 13 and June 22, 2018.

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”) sets out the circumstances in which claim costs may be removed from the cost experience of an accident employer and charged to a collective pool. This process is known as ‘cost relief.’

The circumstances in which cost relief may be available are set out in Section A of the Policy and include situations involving claims that are either caused by a pre-existing condition or are significantly prolonged by a pre-existing condition. Section A. 1. a) provides in part:

A. POLICY

1. THE COST RELIEF/TRANSFER PROCESS: 

…

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, “Pre-Existing Conditions,” states in part as follows:

When the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition, the WCB may provide cost relief to Class E employers.

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.

• When the wearing of an artificial appliance 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.

…

Employer’s Position

The employer was represented by a consultant who provided a written submission for the panel’s consideration.

The employer’s position was that it should be awarded 100% cost relief on the basis that the facts of the claim and the weight of the medical evidence show that the underlying pre-existing condition, namely the worker’s pre-existing coronary artery disease, was the primary cause of the worker’s heart attack on May 3, 2016.

The employer submitted that the accepted medical diagnosis, which was not in dispute, was that the worker suffered a myocardial infarction (MI), or heart attack. The employer further submitted that the sole and direct cause of the heart attack was the worker’s pre-existing condition and, in particular, the presence of a 90% occluded artery, and not the work the worker was performing at the time of the heart attack. More specifically, the removal of the tarp by the worker, it was submitted, would not, on its own, have caused the heart attack but for the presence of a pre-existing condition. In the employer’s view, the occluded artery was the primary cause of the heart attack and the workplace activities were the secondary cause.

In the alternative, it was the employer’s position that it should be awarded 50% cost relief on the basis that the pre-existing condition prolonged the worker’s recovery period.

Worker’s Position:

The worker did not participate in the appeal.

Analysis:

The issue before the panel is whether the employer is entitled to cost relief. For the employer’s appeal to be successful, the panel must find that the facts and circumstances of this case meet the requirements of the Policy. The panel is unable to make this finding.

Subsequent to the review, the panel sought the WCB's position regarding the term "primary cause" as it related to "a prior medical condition" in the Cost Relief Policy. The May 22, 2018 response from the WCB General Counsel was shared with both parties who provided written comments on June 13 and June 22, 2018.

After due consideration of the positions put forward, the panel accepts and adopts the analysis provided by the WCB General Counsel, which included an analysis of policies and decisions in other Canadian jurisdictions. The analysis was summarized as follows:

In summary, the circumstances giving rise to 100% cost relief are rare. The medical condition will generally involve a loss of consciousness that precipitates or triggers events resulting in work injury. In such circumstances, the WCB will determine that the condition is the primary cause of the accident and 100% cost relief will be provided.

Although the worker had a pre-existing condition, the panel finds that the evidence supports the conclusion that the pre-existing condition was not the primary cause of the worker’s accident. The panel has concluded that the underlying medical condition did not precipitate, or trigger, the injury. Rather, the worker’s activity in performing his job duties, including the increased activity involved in unbuckling the load and the removal of the tarp, played a significant role in causing, or triggering, his MI. In the circumstances, 100% cost relief is not available.

In order to be entitled to 50% cost relief, the employer must show that the duration of the claim was significantly prolonged by the existence of a pre-existing condition. In this case, the worker’s treatment provider indicated that the worker should not drive a truck professionally for three months. Wage loss benefits were issued for 13 weeks. In the circumstances, the panel finds that the duration of wage loss benefits was reasonable and was not, in fact, prolonged or delayed at all as a result of the pre-existing condition. The panel therefore concludes that the worker’s pre-existing condition did not significantly contribute to the duration of wage loss benefits paid on the claim.

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 has not, therefore, satisfied the requirements for cost relief under the Policy. As such, the employer is not entitled to cost relief and the employer’s appeal is dismissed.

Panel Members

K. Wittman, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Wittman - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of August, 2018