Decision #19/20 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that they were not entitled to cost relief. A file review was held on December 18, 2019 to consider the employer's appeal.
Whether or not the employer is entitled to cost relief.
That the employer is not entitled to cost relief.
The worker has an accepted claim with the WCB for an injury to his right shoulder that occurred at work on November 21, 2016. He reported injuring his shoulder while helping a co-worker "do a spindle and I was spinning it. I put a lot of pressure into it when I went to spin it and felt a very sharp pain to my right shoulder that is traveling down my arm, into my elbow."
On November 22, 2016, the worker sought treatment from his family physician, who noted his right shoulder was tender with painful and restricted range of motion. At an initial physiotherapy assessment on November 30, 2016, the worker reported constant achy pain that became sharper with activity, that radiated down his arm and woke him up at night. The physiotherapist noted a positive empty can test and diagnosed the worker with a rotator cuff strain. Recommended restrictions of no use of right arm were indicated. On December 1, 2016, the worker provided a Sickness Certificate from his family physician noting that he should remain off work to January 2, 2017. The worker's claim was accepted and payment of benefits commenced.
An MRI of the worker's right shoulder on December 27, 2016 indicated:
1. Tendinosis of the supraspinatus tendon with low grade, partial thickness intrasubstance tear.
2. Small to moderate amount of subacromial/subdeltoid bursal fluid, likely representing bursitis.
On April 4, 2017, the worker attended a call-in examination with a WCB medical advisor. The WCB medical advisor opined that the tendinosis shown on the MRI was a pre-existing degenerative condition that was "quite mild in nature." The medical advisor further opined that there was a forceful mechanism of injury with the worker's arm held away from his body, which could injure the worker's rotator cuff whether degeneration was present or not, and the rotator cuff tear identified on the MRI was likely related to the workplace accident.
The worker's past medical history of neck and shoulder difficulties was also reviewed by the WCB medical advisor, who noted that the worker reported his pain was in a different area from where it had been before with the previous injury and a 2014 clinic report did not mention any rotator cuff findings or diagnosis. The medical advisor noted that the natural history of a rotator cuff tear is that it would not heal; it could become asymptomatic or it could go to surgery.
On January 5, 2017, the employer requested that Review Office reconsider the WCB's decision that the worker's claim was acceptable. On April 20, 2017, the employer provided a detailed submission in support of its request for reconsideration, noting concerns with the worker's reporting of the date of the workplace accident and description of the incident, with prior shoulder difficulties that pre-dated the incident, and with the accident not having been reported to the employer. On April 21, 2017, Review Office returned the worker's file to the WCB's Compensation Services for further investigation.
The WCB received further medical information regarding the worker's previous injury, which was reviewed by the WCB medical advisor. On May 26, 2017, the medical advisor noted that the worker had been treated by a pain clinic physician, who documented the worker had chronic neck/shoulder/upper back pain, which was considered myofascial in nature. The medical advisor further noted that the areas of treatment did not include the glenohumeral joint or cuff area, but were more to the upper back region.
The WCB medical advisor opined that the new information supported the opinion provided in call-in examination notes, that there was no previous indication of injury or symptoms in the worker's rotator cuff and that "The chronic pain was in a different area and would not affect the recovery of a cuff injury." The WCB medical advisor further opined that the mechanism of injury as described by the worker at the call-in examination "…would be consistent with significant force through the shoulder/cuff and could be expected to lead to the cuff tear reported on the MRI. He had clinical findings consistent with the dx [diagnosis]."
On June 20, 2017, Compensation Services advised the employer that further investigation had been undertaken on the worker's file and the decision to accept the claim was upheld. Compensation Services advised that they had determined the worker sustained an injury from an accident on November 21, 2016, reported his accident to the employer in a timely manner, and did not delay in seeking medical treatment. As such, the worker's claim was acceptable.
On October 4, 2017, the worker underwent a right shoulder arthroscopic procedure with subacromial decompression and acromioplasty and rotator cuff repair. A November 5, 2017 opinion from the WCB medical advisor stated that it would take about five to six months for the rotator cuff repair to get strong enough to allow full activity and that physiotherapy would usually be initiated early to help with pain management, mobilizing the shoulder, and eventually with functional restoration.
On December 13, 2018, the worker's file was again reviewed by the WCB medical advisor. The medical advisor indicated that the worker's current diagnosis was post-op rotator cuff repair. The medical advisor noted that there had been continuity of assessments and treatment for the shoulder since the surgery, however there was no medical explanation and no documented clinical findings to substantiate the worker's pain complaints. The medical advisor opined that the worker was likely at maximum medical improvement, and the recommended treatment was for the worker to gradually return to normal life activities.
On January 4, 2019, Compensation Services advised the worker that they were unable to accept further responsibility for his claim. Compensation Services advised that the information indicated that he had recovered from his November 21, 2016 right shoulder injury and had no further loss of earning capacity.
On January 10, 2019, the employer's representative inquired as to the status of the claim and whether there was indication of a pre-existing condition affecting the worker's recovery, which would entitle the employer to cost relief. On January 16, 2019, Compensation Services advised the employer that there was no indication of a pre-existing condition which would affect the worker's recovery and that cost relief was therefore not applicable.
On March 24, 2019, the employer's representative requested that Review Office reconsider Compensation Services' decision to deny the employer cost relief on the worker's claim. The employer's representative submitted that pre-existing conditions significantly delayed the worker's recovery from the workplace accident and that cost relief should be granted. On March 29, 2019, the worker's file was returned to Compensation Services for further investigation and review of their decision.
On April 10, 2019, the worker's file was reviewed by the WCB medical advisor with respect to pre-existing conditions and their potential effect on his recovery from the workplace accident. The WCB medical advisor reviewed the medical information on file, including reports from the worker's treating healthcare providers and diagnostic imaging, and opined that the worker "…followed the natural history of the initial dx of a cuff tear in that some don't have full pain relief and/or functional recovery and these often come to surgery. There would be no pre-x [pre-existing] condition that affected that progress, it's just the natural history of a cuff tear."
The WCB medical advisor further opined that normal recovery and return to heavy work following rotator cuff repair surgery is six months, and the worker's recovery was prolonged past that time. The medical advisor opined that based on a review of the medical documentation and the post-operative MRI, there was no evidence of structural abnormality that would have accounted for his prolonged recovery. The mild tendinosis on MRI should not affect recovery from the repair. The worker had pre-existing pain to his neck and shoulder, but that was considered myofascial and mainly to the neck and would not affect the biological healing of a rotator cuff repair.
The WCB medical advisor went on to note that the prolonged recovery seemed to be due to the worker's pain perception. The medical advisor opined that it was apparent the worker had a pre-existing issue with pain, and it was likely the worker's perception of his pain, not the biological effects of his injury, prolonged his recovery. On April 25, 2019, Compensation Services advised the employer's representative that they had determined the worker did not have a pre-existing condition that significantly prolonged his claim and the employer was not entitled to cost relief.
On April 29, 2019, the employer's representative requested that Review Office reconsider Compensation Services' decision to deny cost relief, based on their submission of March 24, 2019.
On June 5, 2019, Review Office determined that the employer was not entitled to cost relief. Review Office placed weight on the WCB medical advisor's opinions, and found that there were no pre-existing structural abnormalities based on diagnostic imaging and the operative report findings. Review Office determined that while tendinosis of the supraspinatus tendon was noted on diagnostic testing, it was mild in nature and they did not find it substantial enough to have played a role in the worker's recovery post-operatively.
Review Office noted that the worker last sought medical treatment for his pre-existing myofascial condition five and one half months prior to his right shoulder injury and that the nature of that condition differed from the worker's complaints following the November 21, 2016 compensable injury. Review Office specifically noted that the concerns at the time of his prior motor vehicle accident were for a different body area than that reported following his November 21, 2016 accident. Review Office therefore determined that while the worker did have pre-existing conditions and the duration of the claim met the minimum period of 12 weeks' time loss, those pre-existing conditions had not significantly prolonged the duration of the worker's claim and there was no entitlement to cost relief.
On June 19, 2019, the employer's representative appealed the Review Office decision to the Appeal Commission and a file review was arranged.
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 Transfer - Class E (the "Policy") outlines circumstances in which claim costs may be removed from the cost experience of an accident employer and assigned to a collective cost pool. This process is called "cost relief."
This appeal deals with the employer's request for cost relief in the case of a worker with a pre-existing condition.
The Policy provides that cost relief may be provided to Class E Employers in certain circumstances, including where:
• 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 stated, in part:
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…
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.
"Pre-existing condition" is defined in WCB Policy 126.96.36.199, Pre-existing Conditions, as "a medical condition that existed prior to the compensable injury."
The employer was represented by a consultant. The appeal proceeded by way of written file review.
The employer's position was that a pre-existing condition or conditions significantly prolonged the worker's recovery from the accepted injury and cost relief can and should be granted.
The employer's representative submitted that the evidence on file supports that the worker had a documented pre-existing condition which significantly impacted and delayed recovery from the workplace injury. The representative noted that while the worker's initial injury was expected to be of short duration, it lasted for almost three years. It was submitted that the only logical explanation for the duration of the claim was the pre-existing condition or conditions.
The employer's representative submitted that although Review Office had referred to the pre-existing condition as shown on the December 27, 2016 MRI of a small intra-substance tear and a degenerative condition of tendinosis, as being "mild" and "minor" in nature, that characterization had since been proven wrong based on the evidence and the worker's lengthy recovery. The representative submitted that when looking at the effect of a pre-existing condition on a workplace injury, the WCB must look at the actual impact of a pre-existing condition on recovery, not just the severity of the pre-existing condition. It was submitted that in this case, the evidence clearly showed that the pre-existing condition had an "outsized" impact on the worker's recovery and added significantly to the duration of the claim, or at the very least, had an equal impact on its duration.
The employer's representative argued that the medical practitioners involved in this claim frequently cited the pre-existing condition as a factor affecting treatment and recovery. He also argued that there was ample evidence the worker had other, but related, pre-existing conditions which ultimately affected, or at the very least muddied, treatment for his shoulder injury and his recovery.
The employer's representative noted that in a January 14, 2014 report, the treating doctor had stated that the worker had ongoing neck and upper extremity pain since a motor vehicle collision in June 2011, particularly involving the right neck and shoulder. The representative submitted that the worker was symptomatic from this condition right up to the workplace injury, and that a lot of the symptoms overlapped the symptoms he reported from his workplace injury.
It was submitted that essentially the worker had more than one pre-existing condition, and that while the employer was of the view that the effects of the pre-existing tendinosis was enough to warrant cost relief, the overlapping of the other pre-existing conditions was more than enough to warrant cost relief.
The employer's representative submitted that Review Office provided no explanation for the exceptionally long duration of this claim and the worker's lengthy period of recovery. The representative submitted that if the duration of the recovery is not explained by the diagnosed injury, as in this case, it is reasonable to assume, on a balance of probabilities, that the pre-existing condition is the likely explanation for the claim being prolonged.
In conclusion, it was submitted that the circumstances of the claim more than meet the criteria of the Policy and that cost relief should be granted to the employer.
The worker did not participate in the appeal.
The employer is seeking cost relief. The employer's position is that the worker's pre-existing condition or conditions significantly prolonged his claim. For the employer's appeal to be successful, the panel must find that the employer's request satisfied the requirements of the Policy and Schedule A to the Policy. The panel is unable to make that finding
For cost relief to apply under Schedule A of the Policy, the worker must have a pre-existing condition and time loss must exceed 12 weeks. The panel accepts that the worker had some pre-existing conditions and that the worker's time lost from work was greater than 12 weeks. These requirements have therefore been satisfied.
The final requirement for eligibility of cost relief is that the pre-existing condition significantly prolonged the claim. The panel is not able to make that finding.
The panel has carefully reviewed and considered the information on file, including the submissions of the employer. Based on our review of that information, the panel finds that there is an absence of compelling medical evidence that the worker had a pre-existing condition or conditions which, either alone or combination, impacted the worker's recovery in a material way or interfered with his recovery.
The panel recognizes that the December 27, 2016 MRI of the worker's right shoulder indicated that he had "tendinosis of the supraspinatus tendon with low grade, partial thickness intrasubstance tear" which would have pre-dated the November 21, 2016 workplace accident. The panel accepts the WCB medical advisor's April 4, 2017 opinion that "The tendinosis is a pre-existing degenerative condition of the tendon quite mild in nature." The panel also accepts the WCB medical advisor's April 10, 2019 opinion, following the rotator cuff repair surgery, that this mild tendinosis on MRI "should not affect the recovery from the repair." The panel has been unable to locate evidence to support the employer's contention that this condition contributed to the duration of the worker's recovery or claim.
The employer's representative referred to a January 14, 2014 report from the worker's treating physician, where he stated that the worker had ongoing neck and upper extremity pain since a motor vehicle collision in June 2011, and submitted that the worker was symptomatic from this condition right up to the workplace injury. Based on our review of the available evidence, the panel is unable to find that this condition impacted or interfered with the worker's recovery in a material way.
In arriving at that conclusion, the panel places weight on the WCB medical advisor's notes of her April 4, 2017 call-in examination of the worker, where the medical advisor noted that "Further detail was obtained regarding the worker's noted past history of neck and shoulder difficulties" and opined that "Based on [the worker's] report, this pain is completely different and at a different area from where he had it before. Review of a report from [clinic] from 2014 further supports that, as there was no mention of any rotator cuff findings or diagnosis."
The panel also places weight on the May 26, 2017 report of the WCB medical advisor who, after reviewing further medical information which had been received regarding the worker's previous injury, noted that the worker had chronic neck/ shoulder/upper back pain which was considered myofascial in nature, and that the areas of treatment did not include the "…glenohumeral joint or cuff area; rather they are more to the upper back region," and went on to opine that "The chronic pain was in a different area and would not affect the recovery of a cuff injury."
The panel notes that the presence of a major pre-existing condition was also addressed by another WCB medical examiner in determining the worker's eligibility for a permanent impairment award, who reviewed the medical information on file and opined on December 19, 2018 that "There is no evidence of a major pre-existing condition in regards to the PPI."
The panel notes that the employer's representative provided very few specifics in support of the employer's appeal. While the representative argued that medical practitioners involved in the claim "frequently cited the pre-existing condition as a factor affecting treatment and recovery," he directed the panel to very few instances of this or it was unclear what pre-existing conditions he was referring to as being cited in this regard.
The panel is further unable to accept the representative's argument that if the duration of recovery is not explained by the diagnosed injury, it is reasonable to assume that the pre-existing condition is the likely explanation for the claim being prolonged. The panel is of the view that the fact that a worker's ongoing symptoms are difficult to explain or that recovery may have extended beyond what would be considered to be an average recovery period does not mean or imply that there is a pre-existing condition significantly affecting recovery.
Based on the evidence which is before us, the panel is satisfied that while the worker's recovery extended far beyond the recovery norm for such an injury, his recovery nevertheless followed what we understand to be the natural history of a rotator cuff tear.
In conclusion, the panel finds that the worker's claim was not significantly prolonged by his pre-existing condition or conditions. The panel finds that the employer's request does not satisfy the requirements of the Policy, and that the employer is therefore not entitled to cost relief.
The employer's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
D. Neal, Commissioner
Recording Secretary, J. Lee
- Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 14th day of February, 2020