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 December 4, 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 that he injured his lower back on October 19, 2017 when he moved a 45 gallon drum that had shifted. The worker attended at a walk-in clinic that day and was diagnosed with a low back strain. A CT referral was made and it was recommended the worker remain off work until October 30, 2017. On October 23, 2017, the worker attended an initial physiotherapy appointment where he reported pain in his lower right back that wrapped around to his inner thigh and groin. The physiotherapist diagnosed him with an "L1-L3 possible prolapsed disc."

On October 27, 2017, the WCB accepted the worker's claim. Payment of wage loss and medical aid benefits started. The worker attended at his family physician's office on October 30, 2017. The worker described the incident as "moving a heavy drum and acute low back pain with right leg radiation." He reported "pain stiffness and right leg radiating pain" to his physician and was diagnosed with back strain and sciatica.

A CT scan was conducted on November 15, 2017. The results indicated a large disc protrusion at L3 - L4, described as "At L3 - L4 there is a large far right lateral disc protrusion completely effacing the fat in the neural foramen and is affecting the right L3 and possibly L4 nerve roots. No central stenosis is present." It was further noted: "At all levels imaged there are degenerative changes but no specific osseous changes to indicate metastatic disease." At a follow-up appointment with his family physician on November 17, 2017 to review the CT scan results, the worker's diagnosis was changed to "large L3-4 disc protursion (sic) with nerve compressed."

The worker attended a call-in examination with the WCB's physiotherapy consultant on December 7, 2017. The WCB physiotherapy consultant noted the worker's current diagnosis to be "non-specific low back pain with reported right leg radicular features." As a result of the examination, the WCB physiotherapy consultant recommended that the worker attend a four week, supervised core strength program with lifting techniques as a reconditioning program. It was further opined:

Recovery from a low back strain with reported radicular features is within a few days to several weeks. It is anticipated that [the worker] will be functionally capable of a return to full work duties upon completion of the strengthening program.

The worker began the reconditioning program on December 18, 2017 and also began a graduated return to work program on January 2, 2018. The worker returned to his full regular duties on April 24, 2018.

On May 24, 2018, the WCB advised the employer there was medical evidence to support the worker had a pre-existing condition however, the file was reviewed by a WCB medical advisor who opined that the pre-existing condition did not materially delay recovery from the workplace injury and that material recovery for the type of injury sustained by the worker was six months to a year.

The employer's representative requested reconsideration of the WCB's decision to Review Office on May 25, 2018. Further information in respect of their request was submitted on June 19, 2018. The employer's representative presented the argument that the worker advised he had a "deteriorated L3 disc since the age of 15." She further noted that disability guidelines indicate that the recovery period for a back strain is typically four to six weeks but as this claim had gone on for five months, the worker's pre-existing condition prolonged recovery and the employer should be entitled to 50% cost relief.

Review Office determined on July 12, 2018 that the employer was not entitled to cost relief. Review Office found that the worker had an accepted claim for a back strain and sciatica as a result of his October 19, 2017 workplace accident. The worker received benefits for 26 weeks. Review Office further found that the worker reported consistent symptoms throughout the claim and found that the compensable injury was a low back strain with radiculopathy from a prolapsed disc. Review Office noted that the worker's pre-existing condition had not impacted his ability to perform his normal job duties up to the date of the workplace accident, nor did he miss any time from work or require medication or treatment due to his pre-existing condition. Accordingly, Review Office did not find that the length of the claim was prolonged due to the worker's pre-existing condition and the employer was not entitled to cost relief.

The employer's representative filed an appeal with the Appeal Commission on July 13, 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 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.

In a letter attached to the employer's Appeal of Claims Decision form, the employer's representative asked that the panel consider her submission to Review Office dated June 19, 2018 which contained the bulk of her arguments. She also submitted that:

The Review Office does acknowledge the significant pre-existing degenerative conditions in the worker's back revealed in the CT scan of November 15, 2017 … The CT scan confirms degenerative disc disease at multiple levels throughout the worker's spine. This is not mild degeneration; it is substantial degeneration.

… 

In her decision letter, the Review Officer indicates that part of her decision is based upon a statement that the worker made- he advised that he has not missed time from work in the past 30 years due to a back injury until the work incident of October 19, 2018. The Review Officer therefore concluded from this information that since the pre-existing condition has not impacted the worker's ability to perform his regular job duties so far up to the date of the work accident, it is not a factor now and presumably can never be a factor in the future because it hasn't happened in the past. This is an illogical argument.

Although the worker has not missed time during the past 30 years due to the pre-existing condition, he has also aged during those 30 years and accordingly, the degeneration in his spine has also simultaneously worsened over the years - that is, after all, the very nature of a degenerative condition. Just because the pre-existing conditions did not previously impact his ability to work does not imply that they never will. With the passage of time and the worsening of the degenerative conditions, it is inevitable that at some point, these pre-existing conditions will indeed be aggravated by an incident. This incident occurred at work on October 19, 2018. We maintain that the work incident did, in fact, aggravate the pre-existing degeneration in the worker's spine.

The Review Officer further states that the right leg paresthesias is a new finding and therefore concludes that it is the result of the workplace injury. I would like to point that an aggravation of pre-existing condition can also result in a new finding of paresthesias. Furthermore, this paresthesias would be much less likely to develop with a person who had no pre-existing spinal degeneration; the work incident would then very likely result in only a back strain, expected to recover within a few weeks. We believe that radiculopathy is a result of the underlying pre-existing conditions finally being aggravated by the work incident.

Summary

We ask that the Appeals Commission obtain an opinion from an orthopedic specialist regarding the topic of whether the worker's pre-existing conditions were aggravated by the work incident of October 19, 2018 and whether the recovery was therefore greatly prolonged. We would like to know that, in the absence of the pre-existing conditions, and given the mechanism of injury on that date, what would reasonably be the diagnosis and recovery time. We ask that cost relief be granted to the employer at the 12 week point as WCB Policy 31.05.10.

In her letter of June 19, 2018 the employer's representative advised that she disagreed with the medical advisor's opinion. She stated the Medical Advisor's opinion does not carry the weight of a clinical in-person assessment. She indicated that:

- I am also unclear as the Medical Advisor's repeated use of the work "material": he speaks of a "material recovery" of 6 months to a year and that the pre-existing condition did not "materially delay recovery." His repeated use of the word "material" seems to indicate lack of certainty on his part. I find that adjective to be confusing and unclear. Either the pre-existing condition delayed recovery or it did not.

She submitted that the pre-existing condition did delay the worker's recovery substantially. She referred to the Disability Duration Guidelines that indicate recovery for back strain is 4-6 weeks but that this claim continued for 5 months, exceeding the guidelines.

The employer representative noted that the worker acknowledged having "deteriorated L3 disc since the age of 15". She also noted that a CT scan dated November 15, 2017 confirmed the presence of significant L3-4 disc protrusion, pressing on a nerve and degenerative changes at all levels.

The representative indicated that the worker attended a WCB call-in exam on December 7, 2017 conducted by a WCB physiotherapy consultant. She noted that the physiotherapist stated:

Recovery from a low back strain with reported radicular features is within a few days to several weeks. It is anticipated that [worker] will be functionally capable of a return to full work duties upon completion of the strengthening program.

She said that based on the physiotherapy assessment, the worker should have been able to return to full work duties by mid to end of January 2018. She submitted that:

Since the physio consultant performed a clinical exam and is better qualified to assess limitations/functional abilities… more weight should be placed upon his assessment.

The employer's representative submitted that:

The radicular features and sciatica present on this back injury claim are due strictly to the pre-existing L3 disc herniation pressing on a nerve. In the absence of the multiple pre-existing conditions, the worker would have suffered a simple back strain, expected to recover in 4-6 weeks as per the Disability Duration Guideline.

Worker's Position

The worker did not participate in the employer's appeal.

Analysis

The employer is seeking cost relief. The employer's positon is that the pre-existing condition, significantly prolonged the worker's claim. The employer's representative submitted that the radicular features and sciatica the worker suffers from "are strictly due to the pre-existing L3 disc herniation." The employer sought cost relief pursuant to the Policy.

The panel notes that the worker's time loss exceeded 12 weeks and therefore, subject to the panel identifying a causal relationship, the employer could be eligible for cost relief.

Schedule A to the Policy provides for cost relief at either 100% or 50%. Full cost relief (100%) is only applicable to cases where the prior medical condition is the primary cause of the accident. The panel finds that the evidence does not establish that the injury in this case was caused by the worker's prior medical condition; accordingly, 100% cost relief is not available.

Eligibility for 50% cost relief arises when the pre-existing condition significantly prolonged the worker's claim. However, the panel, upon consideration of all the evidence, finds on a balance of probabilities, that the worker's claim was not significantly prolonged by the worker's pre-existing condition.

In making its decision, the panel attaches weight to the following:

• the worker told a WCB physiotherapy consultant that he injured his back when he was 15 and he had a workplace injury approximately 30 years ago.

• notwithstanding that the worker has a pre-existing back condition, the worker had not missed time from work related to back problems in the past 30 years.

• right leg paresthesias were not diagnosed prior to the workplace accident and only became evident after the accident.

Based upon the above facts, the panel is not able to find that the worker's pre-existing condition significantly prolonged the worker's claim.

The panel accepts the opinion of the WCB Medical advisor who reviewed the file and opined that:

Given there is a radiculopathy component to the diagnosis, with material recovery for a radiculopathy 6 months to a year, the writer would opine that the pre-existing low back osteoarthritis did not material delay recovery from the compensable injury within a reasonable degree of medical certainty.

The panel notes that the employer representative submitted that the radiculopathy was a pre-existing condition. However, the panel is not able to find evidence to support that the radiculopathy was a pre-existing condition and accordingly does not agree with the employer's representative's position.

The panel notes that the employer's representative expressed concern that this injury exceeded the Disability Duration Guidelines for a strain injury. The panel finds that the injury included a radiculopathic component and was more than a strain and in any case finds the Disability Duration Guidelines are only guidelines which must be considered in relation to the nature of the injury, the medical and other evidence on the file, and are not binding on the WCB or the Appeal Commission.

Finally, the panel notes the employer representative asked that the Appeal Commission obtain an opinion from an orthopedic specialist regarding the topic of whether the worker's pre-existing conditions were aggravated by the work incident of October 19, 2017 and whether the recovery was therefore greatly prolonged. The panel finds that such a referral is not necessary and that there is sufficient medical evidence on file to determine the issue before it.

The employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 8th day of January, 2019