Decision #121/19 - 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 September 5, 2019 to consider the employer's appeal.
Whether or not the employer is entitled to cost relief.
The employer is entitled to cost relief.
The worker suffered a crush injury to his right index finger in an incident at work on September 8, 2017 when his finger was crushed between two pieces of wood. The worker attended the local hospital for emergency care where he underwent a right index partial distal phalanx amputation. The injury was treated and the worker was advised on September 9, 2017 to remain off work for at least two weeks.
In a follow up appointment on October 19, 2017, the treating surgeon noted that the worker was well on his way to recovery with mild swelling to the finger. The surgeon recommended the worker remain off work for one more week and then return on modified duties with no heavy lifting or extensive use of his right hand. A follow up appointment was set for one month later. The worker returned to work on October 30, 2017 on modified duties.
When the worker next saw the surgeon for follow up on November 16, 2017, the surgeon noted that healing of the wound was delayed. On the same date, the worker underwent a secondary procedure described as a revision amputation of right D2 distal tip with local flap tissue rearrangement. He was released home with a note to the employer indicating that he would be off work for at least two weeks until reassessed.
On November 19, 2017, the worker attended at an emergency room reporting increasing pain in his right index finger as well as redness, swelling and discharge of pus from the wound site. A Post-Operative Complications Form was completed as part of the triage process, noting these concerns arose since the revision procedure on November 16, 2017. The Emergency Treatment Record indicates a diagnosis of cellulitis of the worker's right index finger. The worker was treated with a procedure to debride and irrigate the wound and a course of antibiotics was started. Bone and tissue samples were taken and tested. As a result, the worker was admitted to hospital and diagnosed with right flexor tenosynovitis, osteomyelitis, and cellulitis.
After a week of intravenous antibiotics, there was no sign of improvement and on November 27, 2017, the worker underwent a right index ray amputation, removing the entire digit through the mid-shaft of the second metacarpal. The worker was discharged from hospital on November 28, 2017.
Follow up medical reports indicated there were no further infections or other complications arising out of the November 27 surgery and that the worker healed as expected.
On January 8, 2018, the worker returned to work full-time on alternate (light) duties. By January 29, 2018, he had resumed his regular duties.
The employer requested cost relief on December 18, 2017 the basis that the worker's pre-existing diabetes created a predisposition to infection, and that it was as a result of infection rather than as a result of the workplace injury that a further amputation of the worker's right index finger was required, resulting in prolonged time loss from the compensable injury of September 8, 2017. On September 28, 2018, the WCB denied the employer's request for cost relief. The employer requested reconsideration of the decision to Review Office. On November 22, 2018, Review Office confirmed the decision of the WCB. The employer appealed the decision of Review Office to the Appeal Commission on December 11, 2018.
A file review was conducted on September 5, 2019.
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.
Section 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.
Section 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…" Section 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.
WCB Policy 31.05.10 Cost Relief/Cost Transfer - Class E (the "Cost Relief Policy") is intended to ensure fairness and accountability for employers by allowing that the WCB may re-allocate claim costs to reflect collective or individual responsibility in certain specified circumstances, as outlined in part, below:
CIRCUMSTANCES FOR COST RELIEF OR COST TRANSFER
As described in the attached Schedules, Cost Relief or Cost Transfer may be provided to Class E Employers in the following circumstances:
• 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.
• The injury or illness is compensable under policy 188.8.131.52, Further Injuries Subsequent to a Compensable Injury. See Schedule C - Further Injuries Subsequent to a Compensable Injury.
Schedule A - 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.
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.
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.
Different rules apply with respect to Cost Relief and impairment awards. When a claim is significantly prolonged by a pre-existing condition and the impairment rating is not affected by the preexisting condition, the WCB will provide 50% Cost Relief on the impairment award. When a claim is significantly prolonged by a pre-existing condition and the impairment rating is affected by the preexisting condition, the WCB will not provide Cost Relief on the impairment award.
The WCB will consider "time loss" to include absences from regular job duties and/or time worked during modified or alternate work programs. The payment of WCB wage loss benefits during a modified or alternate work program is not necessary to qualify for Cost Relief under this Schedule.
Accordingly, when the claim is significantly prolonged by a pre-existing condition and the policy criteria are met, employers who accommodate injured workers in early return-to-work programs may be eligible for Cost Relief.
Schedule C - Further Injuries Subsequent to a Compensable Injury
Cost Relief may be provided to the Accident Employer if an injury is compensable as a "further injury" under policy 184.108.40.206, Further Injuries Subsequent to a Compensable Injury.
The additional costs associated with the further separate injury are removed from the Accident Employer's Claim Costs Experience.
Policy 220.127.116.11 excludes injuries that are part of the normal course of treatment and recovery from the definition of "further separate injury". Therefore, Cost Relief is not provided for such injuries.
WCB Policy 18.104.22.168 Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy") provides that:
A further injury occurring subsequent to a compensable injury is compensable:
(i) when the cause of the further injury is predominantly attributable to the compensable injury; or
(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or
(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.
A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.
C. ADMINISTRATIVE GUIDELINES
A subsequent accident or injury may be compensable if a relationship between the original compensable injury and the subsequent injury is established where:
1. The original injury causes or significantly contributes to the subsequent injury. For example, the subsequent injury results from a residual weakness in the area of the original injury (e.g., unstable knee) or from the use of a prosthetic devise or other appliance. The test for whether the subsequent accident is compensable may include whether, on balance of probabilities, the unstable knee caused or significantly contributed to the subsequent accident or whether the prosthetic device/appliance malfunctioned or there was extraordinary risk associated with the use of the device/appliance.
2. The subsequent injury arises out of a situation over which the WCB exercises direct control. For example, the subsequent injury occurs while the worker is participating in a WCB sponsored activity or service (e.g., a work assessment or on-the-job training); or, the subsequent injury occurs when the worker is travelling on transportation arranged and paid for by the WCB (e.g., to attend the WCB offices or a medical appointment arranged by the WCB).
3. The subsequent injury arises out of the delivery of treatment for the original injury (unless the treatment is not acceptable to the WCB). For example, the worker is injured while being examined or treated (e.g., falls off the examining table or suffers complications from surgery). The subsequent injury would not be compensable if the injury resulted from a hazard of the healthcare providers premises that is not connected to the actual treatment (e.g., the worker slips on ice on the healthcare providers steps or a chair collapses in the healthcare providers offices).
The employer was represented by an advocate who provided the panel with a written submission. The employer's position is that the request for cost relief should be granted because the worker's pre-existing condition of diabetes contributed to his injury and prolonged his recovery.
The employer relied on the conclusions set out in the WCB orthopedic advisor reports dated January 3, 2018 and April 9, 2018 which both note that the worker had a pre-existing condition of diabetes that materially prolonged healing of the worker's crush injury. The WCB orthopedic advisor noted the expected time for recovery from the injury the worker incurred was 2 months, but here, nearly twice as much time passed before the worker was fully recovered and working full-time regular duties.
The employer's position is that the claim was significantly prolonged by the worker's pre-existing condition of diabetes which resulted in further amputation of the finger due to infection, and that in these circumstances, the employer is entitled to cost relief under the provisions of the Cost Relief Policy.
The worker did not participate in the appeal.
The question to be determined on appeal was whether the employer is entitled to cost relief. In order for the employer to succeed, the panel must find that the claim was primarily caused by a pre-existing condition or significantly prolonged by the pre-existing condition, or that the worker suffered a further compensable injury or illness subsequent to a compensable injury.
The panel was able to make those findings on the basis of the evidence before it, and the employer is therefore entitled to cost relief.
The employer's request for cost relief is grounded in the provisions of the WCB Cost Relief Policy as outlined above. Specifically, the employer requested cost relief on the basis that the worker's pre-existing condition of diabetes significantly prolonged his recovery from the compensable injury.
In order to be eligible for cost relief on the basis that the claim is significantly prolonged by a pre-existing condition, the worker's time lost from work must exceed 12 weeks. The Cost Relief Policy provides that in calculating whether the threshold has been met, the WCB will consider time loss to include absences from regular job duties as well as time worked during modified or alternate work programs. The panel finds that the evidence on the worker's file confirms that this threshold has been met.
The panel therefore considered whether the evidence supports a finding that the worker's pre-existing condition significantly prolonged the claim. In determining this question the panel considered the following medical findings and opinions:
• On November 16, 2017, the worker's treating physician noted "delayed wound healing."
• A report dated November 21, 2017 from the worker's treating physician references that since the worker's initial surgery to his right index finger, the worker was "…having ongoing issues with ulcerations of the tip. Given his medical comorbidities and the size of the injury it was advised that a revision amputation would best get this lesion addressed." (emphasis added)
• A November 19, 2017 Emergency Treatment Record confirms that the worker was admitted to hospital on that date for treatment of cellulitis of his right index finger.
• A November 20, 2017 Consultation Form indicates that the worker was diagnosed with osteomyelitis, tenosynovitis and soft tissue infections in his right index finger.
• Day surgery chart notes dated December 4, 2017 confirm that on November 27, 2017 the worker underwent a right index ray amputation procedure after showing no improvement to the infections first noted on November 19, 2017 and treated with antibiotics since then.
• On January 3, 2018, the WCB orthopedic advisor stated that "A pre-existing condition of diabetes has predisposed [the worker] to finger infection and has materially contributed to delay in recovery."
• On April 11, 2018, the WCB orthopedic advisor reiterated his opinion of January 3, 2018 and added that "Healing of the crush injury was materially prolonged by the pre-existing diabetes, in my opinion. Had the crush injury healed without infection, it would probably have been possible to resume pre-injury duties within two months." The opinion goes on to note that the diabetes had no significant effect upon the recovery after the ray amputation procedure.
• On September 21, 2018, the WCB physiotherapy advisor stated that "The need for the amputation of the entire right index finger is likely related to the combined effect of the pre-existing diabetes and the development of infection and the September 8, 2017 workplace injury." (emphasis added)
The medical opinions outlined support the employer's position that the worker's pre-existing diabetes did impact the claim. The question to be determined here is whether the claim was significantly prolonged by the pre-existing condition.
On this point, the panel noted that the April 11, 2018 report of the WCB orthopedic advisor sets out that a "normal" recovery time would have been two months. The evidence here indicates that the worker was unable to return to regular duties from the time of his accident on September 8, 2017 until January 29, 2018, some 4 ½ months post-accident. That time period includes the period of approximately two weeks in November 2017 when the worker returned to work on modified duties before the revision surgery on November 16, 2017 as well as the approximately three weeks in January 2018 when the worker was at work on modified duties before returning to his regular duties.
The panel accepts the WCB orthopedic advisor's opinion that the worker would have been able to return to regular duties within 2 months had the infection not prolonged his recovery, more than doubling that period to in excess of 4 months. This view is further supported by the fact that the worker did return to regular duties approximately two months after the ray amputation procedure undertaken to address the lingering infections.
On the basis of the evidence before it, the panel finds on a balance of probabilities that the worker's pre-existing condition did significantly prolong the claim.
The panel also considered whether the employer was eligible for cost relief on the basis that the injury is compensable under the Further Injuries Policy. That policy provides that a further or subsequent injury is a separate injury that is not a recurrence of the original compensable injury. A further injury occurring subsequent to a compensable injury is itself compensable when the further injury arises out of the delivery of treatment for the original compensable injury. The Further Injuries Policy explicitly contemplates that complications arising from surgery may be a further injury arising out of the delivery of treatment for the original compensable injury. The Administrative Guidelines to the Further Injuries Policy set out that a relationship between the original compensable injury and the subsequent injury is established where the subsequent injury arises out of the delivery of treatment for the original injury, and specifically points to the example of complications arising from surgery.
The medical reports with respect to the worker's compensable crush injury to his right index finger indicate that he was initially treated with a partial amputation of the finger and returned to work on modified duties thereafter. His recovery seemed to progress as expected until he attended for a follow up visit with his treating physician on November 16, 2017 at which time he underwent another procedure, a revision amputation. Three days later, on November 19, 2017, the worker presented at his local hospital emergency room with symptoms of infection. He was admitted to hospital for treatment and diagnosed with osteomyelitis, tenosynovitis and soft tissue infections in his right index finger. When these infections did not respond favourably to antibiotic treatment after a full week, the worker was booked for a right index ray amputation which took place on November 27, 2017.
The panel considered whether this evidence supports a finding that there was a separate injury arising out of the delivery of treatment for the compensable injury. The panel considered in particular whether the various infections to the worker's right index finger diagnosed on November 19 and 20, 2017 were a further injury arising out of the delivery of treatment for the compensable injury.
In determining this question, the panel noted that the medical findings indicate that the various infections arose within three days following an amputation revision procedure that was undertaken to address delayed wound healing. When the worker attended for treatment on November 19, 2017, it was noted on the Post-Operative Complications Form, completed as part of the triage process, that these concerns arose since the revision procedure on November 16, 2017. The diagnosis of multiple infections was confirmed the next day, and ultimately, it was as a result of these infections that the worker underwent the ray amputation procedure.
The panel finds that the revision amputation on November 16, 2017 was treatment for the compensable injury, and further, that the infections arising out of that treatment were a complication arising out of the delivery of treatment for the compensable injury. As such, the infections diagnosed on November 19 and 20, 2017 would constitute a further and subsequent injury under the provisions of the Further Injuries Policy.
The panel therefore determined, on a balance of probabilities, that the employer is also entitled to cost relief on the basis that the injury or illness is compensable under the Further Injuries policy.
Therefore the employer is entitled to cost relief and the appeal is allowed.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 25th day of September, 2019