The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to cost relief. A hearing was held on May 1, 2019 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 WCB accepted the worker's claim for a psychological injury that occurred when he witnessed a serious accident at work involving a co-worker on September 13, 2016. The worker attended an appointment at his family physician's office on September 15, 2016 where he described having flashbacks of the accident and being unable to sleep or concentrate. The worker also reported being afraid to drive or leave his home. The treating physician noted findings of trembling, being teary, anxious and having low affect. The physician diagnosed the worker with post-traumatic stress disorder (PTSD) and made an urgent referral to a psychologist, which appointment was set for November 29, 2016.

On November 23, 2016, the worker's spouse advised the WCB that the worker had sustained a traumatic brain injury from a slip and fall at home on November 20, 2016. The worker was hospitalized for treatment and then transferred to a second facility for a brain injury rehabilitation program. He was discharged from that facility on January 12, 2017.

The worker's file was reviewed by a WCB psychological consultant on February 15, 2017. The WCB psychological consultant opined that the worker's initial diagnosis related to the September 13, 2016 workplace incident was:

The claimant appears to have developed a Trauma and Stressor Related Disorder with post-traumatic symptoms…

The WCB psychological consultant opined that the worker's current diagnosis was:

As above, the claimant may have a continuing unspecified severity Neurocognitive Disorder secondary to the brain injury he sustained in an alcohol-related fall mechanism accident on November 20, 2016.

It was further opined:

The Trauma and Stressor Related Disorder would be accounted for in relationship to the workplace injury, although the Neurocognitive Disorder secondary to the TBI (traumatic brain injury) would not. This is due to the fact that the TBI occurred in the context of a 12 hour period of extensive alcohol consumption related to socialization with a friend with whom he was playing pool and darts.

The WCB advised the worker on February 16, 2017 that responsibility for wage loss benefits and medical aid costs associated with the accident that occurred on November 20, 2016 would not be accepted by the WCB, as it was determined the accident was not related to the workplace accident of September 13, 2016. On February 24, 2017, the worker was further advised by the WCB that the overpayment that occurred on his claim due to the February 16, 2017 decision would be written off and he would not be responsible for repayment.

On September 20, 2017, the worker attended for a call-in examination with a WCB psychological advisor who provided:

The claimant has the continuation of what sounds like more focal PTSD symptomatologies. He has nighttime disturbance with flashes of what occurred. He has anxiety on exposure to motors and engines. He has intrusive experiences that sometimes occur without trigger throughout the course of the day. He has negative cognitions regarding what had occurred and, he has a sense that the workplace has been and currently continues to be unsafe given his experience previously.

…

At this time, it seems that the claimant has the continuation of a mild Neurocognitive Disorder associated with the traumatic brain injury from November 2016. This is not neutral and it is probable that the traumatic brain injury he had is delaying and complicating his recovery from this Post-traumatic Stress Disorder on a post-claim onset basis given the severity of the injuries he sustained as I had indicated above. This would complicate his recovery and needs to be taken into consideration in his treatment.

…

Hence, the claimant has a claim-related PTSD with ongoing meaningful residual symptoms and he has a non-claim related mild Neurocognitive Disorder secondary to a significant brain injury he had that occurred through the course of his recovery. This complicates his recovery.

The WCB advised the employer on December 20, 2017 that a current review of the worker's claim had been done and it was determined there was no entitlement to cost relief. On July 6, 2018, the WCB advised the employer that the worker's permanent restriction was determined to be no return to employment with the accident employer which was related to his ongoing PTSD symptoms.

The employer requested reconsideration of the WCB's decision to Review Office on July 23, 2018. The employer provided that the worker had not remained in contact with them since the workplace accident and had not advised of his intention to return to his job duties. It was further provided that the worker's accident of November 20, 2016 had impacted his recovery from his compensable injury. The employer noted that it should not be responsible for claim costs during the time the worker was hospitalized due to that accident. The employer further advised that the worker had a pre-existing condition with workplace restrictions from a previous claim in another province that he had not disclosed.

On September 24, 2018, Review Office determined that the employer is not entitled to cost relief. Review Office found that WCB policy 31.05.10.01, Cost Relief/Cost Transfers notes that employers can be entitled to cost relief in situations set out in the policy. Review Office considered the situations set out in the policy and found that the employer did not meet the requirements for cost relief under the situations noted and as such, was not entitled to cost relief.

The employer filed an appeal with the Appeal Commission on October 1, 2018. An oral hearing 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 WCB’s Board of Directors.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: "… where an injury to a worker results in a loss of earning capacity…" Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

The WCB Board Policy 31.05.10.01, Cost Relief/Cost Transfers (the "Policy"), provides in part as follows:

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 criteria and method of cost allocation are described in Schedule A.

(ii) When the claim involves higher compensation costs not attributable to the accident employer. Circumstances when cost relief will be considered include:

• Where there is a recurrence of the effects of a previous injury or illness when a worker is employed with a new employer and the worker’s net average earnings at the time of the recurrence are greater than the net average earnings at the time of the original accident when adjusted according to the indexing provisions of the Act.

• When the worker has two or more jobs at the time of the compensable accident.

• When the worker’s average earnings on which wage loss benefits are paid are increased by the WCB when the worker is an apprentice or a youthful worker.

• When a worker is employed with a new employer at date of death and the WCB adjusts the deceased worker’s net average earnings to an amount that exceeds the worker’s net average earnings (indexed) at the day of accident.

The cost relief criteria and method of cost allocation are described in Schedule B.

(iii) When a subsequent compensable injury occurs outside the workplace while the worker is already receiving benefits and the second accident extends the period of time loss. The cost relief criteria and method of cost allocation are described in Schedule C.

(iv) When the claim cost includes rehabilitation program expenditures incurred for:

• preventive rehabilitation measures; or

• a further injury that occurs while the worker is in a vocational rehabilitation training program or job placement.

The cost relief criteria and method of cost allocation are described in Schedule D.

(v) When the claim costs unfairly burdens an employer, the WCB may exclude all or part of these costs from a Class E employer’s cost experience. The cost relief criteria and method of cost allocation are described in Schedule H.

(vi) When the worker is a person participating in a work experience program under section 77.1 of the Act and the program is recognized by a Board Order as set out in policy 35.10.60, Coverage under a Work Experience Program. The overall claims costs will be shared by all Class E employers and self-insured employers.

Schedule H to the Policy states in part:

An "unfair burden" is generally understood to mean having a substantial financial impact. Recognizing that the rate-setting model imposes financial limits on employer's assessment rates, there must be other compelling reasons or unusual or extraordinary situations an employer is facing before the WCB considers applying subsection 82(4)(d). A burden is regarded as unfair when it imposes disadvantages other employers would not face in similar circumstances or when the impact is clearly unwarranted for the situation at hand.

In determining whether an employer is unfairly burdened by compensation costs awarded to workers of the employer, the WCB may consider a number of factors including:

• What the effect will this claim have on the employer's assessment rates and over what period of time? • Will there be any additional financial effects other than the assessment rate? • What is the degree or magnitude of the financial burden? • Could the burden threaten the employer's viability? 

• Is the impact outside the realm of what was reasonably anticipated in the design of the rate-setting model? • Has the employer taken all reasonable steps to control its own costs by investing in injury prevention and disability management?

Employer's position

The employer was represented by a lawyer and an administrative and human resources assistant.

It was the employer's position that it should not be responsible for the full costs of the claim. In its appeal, the employer referred to the worker's pre-existing back injury, namely spinal stenosis. The employer submitted the spinal stenosis was the main reason the worker was unable to return to work and referred to a report of the worker's treating physician in support of its position which report listed spinal stenosis as one of the reasons the worker was unable to return to work. The employer submitted that although the spinal stenosis did not affect the worker's recovery from his traumatic brain injury, it affected the worker's ability to return to work and made his ability to find alternate employment more difficult.

In the alternative, the employer submitted that it should be entitled to cost relief based on the existence of a co-existing injury. The employer relied on subsection (v) of the Policy and Schedule H. The employer emphasized that the traumatic brain injury was an injury that occurred at the worker's home and while the worker was off work. The brain injury was severe, requiring several weeks' hospitalization. It was the employer's position that the traumatic brain injury prolonged the worker's recovery from the PTSD and, relying on Schedule H, submitted that it would be an unfair burden to impose the entire claim cost on the employer in the circumstances.

Worker's position

The worker did not participate in the hearing.

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, on a balance of probabilities and on the evidence, that the employer qualifies for cost relief under one or more provisions as set out in the Policy. For the reasons that follow, the panel is unable to make that finding.

As far as the spinal stenosis is concerned, the panel does not dispute that the worker suffered from this condition prior to his workplace injury. There was, however, nothing in the file to indicate that spinal stenosis was materially affecting the worker's recovery from PTSD nor was there anything to suggest that the condition was affecting the worker's ability to return to work. There was, for example, no suggestion that any restrictions had been imposed on the worker as a result of this condition that substantially affected his employability. There was a vocational rehabilitation plan in place. As far as the panel is aware, the vocational rehabilitation plan did not suggest that the worker’s return to work was in any way delayed by his spinal stenosis. Further, despite the spinal stenosis, the worker was working at the time of the accident and is working today. In all the circumstances, the panel does not consider the worker's ability to work or return to work to have been impeded or affected by his pre-existing spinal stenosis.

As far as the request for cost relief based on the factors set out in subsection (v) of the Policy and Schedule H, the panel notes at the outset that although the worker was paid for wage loss benefits during his period of hospitalization following his traumatic brain injury, the WCB has acknowledged that the wage loss benefits for the period of hospitalization ought to be removed from the claim. The cost adjustment with respect to the payment of wage loss benefits during the period of hospitalization is not, therefore, currently before the panel. The issue before the panel, rather, is entitlement to cost relief subsequent to the worker's release from hospital.

The panel has reviewed the criteria set out in subsection (v) of the Policy and in Schedule H. Although the term 'unfair burden' is not defined in Schedule H, the Schedule does set out a number of factors that may be considered when determining whether an 'unfair burden' has been imposed on the employer. Based on our review of those factors, it does not appear that they apply in this case.

The panel interprets Schedule H to refer to a substantial issue which would result in a significant impact on the employer to the point that it affects the employer's ongoing viability. In other words, it refers to a catastrophic or near-catastrophic situation. In this case, the employer has agreed that the claim does not create for it a catastrophic situation. The employer has acknowledged that its ongoing viability is not endangered as a result of this claim. The employer has further acknowledged that the claim has not put it at a greater disadvantage in comparison to other employers in similar circumstances, or that the impact of the claim is clearly unwarranted.

The panel further notes that, following discharge from hospital, the worker immediately began treatment with a psychologist for his PTSD. The treatment that the worker was receiving was subsequently reviewed by the WCB psychological consultant. Although recovery appeared to be slow, the WCB psychological consultant nonetheless opined that the treatment was appropriate. After several further months of treatment, the WCB psychological consultant again reviewed the file. At this point, the WCB psychological consultant was of the opinion that in light of the worker's ongoing PTSD symptoms, the worker may never be able to attain a sense of a level of safety at the site of the accident necessary to permit him to return to his pre-accident employment. The WCB psychological consultant therefore recommended a permanent restriction of no return to work with the pre-accident employer. A vocational rehabilitation plan was subsequently put in place and the worker has found employment with a different employer.

Although the panel acknowledges that the worker sustained a serious injury at home, based on our review of the file and the evidence, we find that the co-existing injury does not appear to have significantly altered the case management of his claim. The worker was diagnosed with and treated for PTSD. The panel finds that there is nothing in any of the reports on file to suggest that the co-existing condition had a significant impact on the worker's ability to undergo treatment for PTSD. At most, the co-existing condition is described as 'mildly' affecting the worker. In the circumstances, we do not find that the co-existing condition affected the timing of recovery.

Because of his ongoing PTSD, permanent restrictions were imposed on the worker that precluded his return to his pre-accident employer. The imposition of a permanent restriction preventing the return to pre-accident employment does not appear to have been affected in any way by the co-existing injury. On the contrary, and by all accounts, the worker was unlikely to have been able to return to his pre-accident employer even in the absence of the co-existing injury.

In light of all of the above, therefore, the panel finds that the criteria set out in Schedule H are not applicable and the employer does not meet the test for cost relief under subsection (v) of the Policy.

Based on the foregoing, the panel finds, on a balance of probabilities, that the employer is not entitled to cost relief in the circumstances. The employer's appeal is therefore 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 26th day of June, 2019