The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that it was not entitled to cost relief. A file review was held on November 5, 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 reported to the WCB that he injured his lower back and legs in a workplace accident on October 11, 2017. The worker was examined by his family physician on October 17, 2017 and diagnosed with mechanical lower back pain.

The worker's claim was accepted by the WCB on October 24, 2017. Wage loss and medical aid benefit payments started. The worker returned to work on a graduated basis with modified duties of sedentary duties, no lifting, pushing, pulling of any weight and four hours per day on October 31, 2017. The worker started working eight hour shifts with the same restrictions on November 27, 2017.

On December 6, 2017, an MRI was conducted on the worker's lumbar spine. The results of the MRI were:

L3-L4: Moderate facet osteoarthritis is present with very minimal degenerative anterolisthesis. There is a shallow disc bulge but no evidence of nerve root compromise or significant stenosis

L4-L5: A shallow diffuse disc bulge is present without nerve root compromise

L5-S1: No abnormality is seen

IMPRESSION:

There is no nerve root compromise

The worker attended at the WCB for a call-in examination with the WCB physiotherapy consultant on December 18, 2017. The WCB physiotherapy consultant opined, in part:

[The worker] presents with nonspecific non-radicular back pain with a discogenic component. He is two months post-injury. The expectation would be for recovery within three to four months. Neurological exam was normal. The movement restriction pattern with osteoarthritis. The position intolerance suggests a discogenic component.

Further physiotherapy will be approved. The focus should be on increasing the degree of difficulty of his strengthening exercises and include exercises such as planks, unsupported squats and back extensor strengthening. His current restrictions can remain for the next four weeks. At that time, restrictions should be reduced…

A January 30, 2018 report from the worker's physiotherapist indicated that the worker had mechanical low back pain with right sacroiliac joint dysfunction. The physiotherapist recommended the worker continue with the sedentary duties, with no repetitive bending and twisting but could include driving a fork lift for twenty minute intervals.

The WCB advised the worker on February 12, 2018 that it had been determined that he had recovered from the effects of his October 10, 2017 workplace accident and that he no longer required restrictions related to that injury. The worker was further advised that the right sacroiliac joint dysfunction noted by his physiotherapist on January 30, 2018 was not caused by his October 10, 2017 workplace accident and responsibility for those symptoms would not be accepted by the WCB.

On February 14, 2018, the employer's representative requested the WCB consider granting the employer cost relief for the worker's claim as the worker had suffered a new workplace accident on January 30, 2018 while participating in a return to work program related to his workplace accident of October 10, 2017 and the employer felt the worker had a pre-existing condition that impacted his recovery time.

The WCB advised the employer's representative on March 8, 2018 that the employer was not entitled to cost relief. It was noted that pursuant to the WCB policies, cost relief would only apply to the worker if the subsequent compensable injury he suffered on January 30, 2018 occurred outside of the workplace or it occurred as part of vocational rehabilitation or work experience plan. The worker's January 30, 2018 incident occurred at the workplace and he was not participating in a vocational rehabilitation or work experience plan at the time. The WCB further advised that at the call-in examination of the worker on December 18, 2017, the recovery expectation time was determined to be four months from the date of the workplace accident. Pursuant to the WCB's February 12, 2018 letter, the worker was determined to be recovered from his compensable injury as of February 16, 2018, which was approximately four months from the date of the workplace accident. As such, the worker was determined to have recovered from his compensable injury within normal expectations for recovery.

The employer's representative requested reconsideration of the WCB's decision to Review Office on April 11, 2018. The employer's representative disagreed with the recovery time set out by the WCB physiotherapy consultant and the WCB's decision that the worker's recovery was not prolonged by a pre-existing condition. The employer's representative noted that a guideline that they relied on notes that recovery from a soft tissue back injury for a worker to return to medium-heavy level work would be a maximum of six weeks. The employer's representative further noted that the workplace accident would not have caused the worker's disc bulges noted on the MRI study, that the disc bulges and osteoarthritis found were pre-existing.

Review Office determined on May 11, 2018 that the employer was not entitled to cost relief. Review Office found that the worker had suffered a strain injury with a discogenic component as opined by the WCB physiotherapy consultant. Review Office accepted the WCB physiotherapy consultant's opinion, which also supported a recovery time of four months. Review Office further found that the worker actively sought treatment and recovered from his workplace injury within the time frame set out by the WCB physiotherapy consultant. Accordingly, Review Office accepted that the worker's recovery was not prolonged by his pre-existing condition.

The employer's representative filed an appeal with the Appeal Commission on May 22, 2018. 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 Board of Directors.

This appeal deals with the employer's request for cost relief in the case of a worker with a pre-existing condition.

WCB Policy 31.05.10, Cost Relief/Cost Transfers - Class E, (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 that cost relief may be provided to Class E Employers in certain circumstances including:

• A claim is either primarily caused by a pre-existing condition or significantly prolonged by the pre-existing condition. See Schedule A - Pre-existing Conditions.

Schedule A to the Policy states, in part:

PRE-EXISTING CONDITIONS

When the claim is either caused primarily by a pre-existing condition or is significantly prolonged by the pre-existing condition, the WCB may provide Cost Relief to Class E Employers except when the pre-existing condition relates to a previous accident with the same employer.

100% Relief

The following pre-existing conditions will result in immediate 100% Cost Relief to the employer when:

• a prior medical condition is determined to be the primary cause of the accident.

• the wearing of an artificial appliance is determined to be the primary cause of the accident.

Prior Medical Condition

A worker's prior medical condition may result in injuries at work or elsewhere. When the WCB determines a worker's prior medical condition is the primary cause of the workplace accident and the worker's workplace has increased the risk of additional injuries, the WCB may accept the claim. For example, a worker's systemic condition results in a loss of consciousness in the workplace and this results in an accident. The WCB determines this condition is 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, other than the costs of any impairment award, will be provided to the employer if the worker’s time lost from work is greater than 12 weeks.

Employer's Position

The employer was represented by a disability management consultant. The appeal was dealt with by way of written review.

The employer's representative submitted, in part:

We are appealing the decision dated May 11, 2018 by the Review Office to deny cost relief to the employer …

The Review Office decision letter (page 4) indicates that the "Disability Duration Guidelines are not evidence that we place weight on (It's simply a guideline)…"

We maintain that the Disability Duration Guidelines is indeed a valid medical guideline which has relevance in determining estimated recovery for an injury. If this worker had sustained a simple, soft-tissue back strain from his work injury, according to the Disability Duration Guidelines, he would have recovered within 6 weeks which would equal November 21, 2017.

The Review Office acknowledges our point that the worker has pre-existing conditions of osteoarthritis and disc bulges in his lower back at L3 and L4-5(as confirmed by the MRI on file). We maintain that these pre-existing conditions did, in fact, prolong his recovery since his restrictions, precluding him from returning to work, did not end until February 16, 2018. His recovery was four months. This is a big difference from the 6-week recovery indicated for a soft-tissue back strain which is what the worker would have sustained, in the absence of the pre-existing conditions which were clearly aggravated by the work injury and which prolonged the recovery significantly.

In my appeal letter of April 11, 2018, we noted that a WCB Medical Advisor Review had not been conducted. The Review Office also dismissed this suggestion, stating, "It is not necessary to obtain an opinion from a medical doctor." We disagree. We feel that a Medical Advisor should have been called upon to review the file and make a determination on whether the worker's recovery was prolonged due to the pre-existing conditions in his spine (which also included a prior spinal fusion as per the medical history on file). In the absence of these pre-existing conditions, would the worker have been able to return to his pre-injury duties by the 6-week mark of November 21, 2017? The Medical Advisor should have been asked to review and comment on the relationship of the worker's symptoms and long recovery time with respect to the fairly minor mechanism of injury. This request was dismissed by the Review Office.

The WCB Physiotherapy Consultant's report indicates that the worker's "movement restriction pattern was consistent with osteoarthritis." This is a significant observation and comment. His movement restrictions were not concluded to be due to a soft tissue back strain; the movement restrictions related to his pre-existing osteoarthritis. This alone shows the significant impact of the pre-existing condition on the worker's slow healing time.

The Review Office dismissed our reference to the Disability Duration Guidelines and they also dismissed our request for a Medical Advisor review of the role of the pre-existing conditions in this worker's prolonged recovery. We ask the Appeal Commission to give consideration to our requests and arguments.

We feel strongly that, in the absence of the pre-existing conditions, this worker would have suffered only a back strain, expected to resolve within 6 weeks by November 21, 2017. We therefore ask that cost relief be granted to the employer starting November 21, 2017 in acknowledgement that this was indeed a very prolonged claim due to the pre-existing conditions which included the discogenic component. The pre-existing conditions exacerbated the healing /recovery process.

Worker's Position

The worker did not participate in the appeal.

Analysis

The employer is seeking cost relief. The employer's positon is that the pre-existing condition significantly prolonged the worker's claim. In order for the employer's appeal to be successful, the panel must find that the employer's request satisfies the requirements of the Policy and Schedule A to the Policy. The panel is unable to make that finding.

Regarding Schedule A, for cost relief to apply, the worker must have a pre-existing condition and time loss must exceed 12 weeks. The panel accepts that these requirements have been met.

The final requirement for eligibility for cost relief is that the pre-existing condition significantly prolonged the claim. The panel is not able to make this finding.

The panel is aware that an MRI performed in 2017 indicated that the worker has pathology in his spine that pre-dated the October 2017 workplace accident. However, the panel did not find evidence to support the employer's contention that this condition contributed to the worker's disability duration. Nor did it find evidence that pre-existing fusion impacted the worker's recovery. The panel accepts the assessment of the WCB physiotherapy consultant. The physiotherapy consultant noted that the worker presented with "nonspecific non-radicular back pain with a discogenic component."

The employer expressed concern that this injury exceeded the Disability Duration Guidelines for a simple strain. The panel is not able to classify this injury as a "simple strain" which would suggest only a muscular injury, and accepts the WCB physiotherapy consultant's opinion that it included a discogenic component. The panel therefore does not find the Disability Duration Guidelines, of resolution of a "simple strain" within 6 weeks, to be applicable to this claim, and in any case finds that they are only a guideline to assist with adjudication.

The employer was also concerned that this claim was not reviewed by a medical doctor. The panel notes, that consistent with WCB practice, the worker was examined by a WCB physiotherapist. The panel considers that the use of a WCB physiotherapist is appropriate given the nature of the injury and treatment provided to the worker. The panel finds that physiotherapy is a discipline consistent with the worker's injury and has probative value in our consideration of the issue before us.

In conclusion, the panel finds that the worker's claim was not significantly prolonged by his pre-existing condition. The employer is therefore not entitled to cost relief.

The employer's appeal is denied.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 27th day of November, 2018