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 January 15, 2020 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 employer filed an Employer's Incident Report with the WCB on January 30, 2015 noting the worker reported experiencing left elbow discomfort as a result of her job duties on January 20, 2015. On February 6, 2015, the employer's representative provided the WCB with a letter noting the employer's concerns with the worker's claim including that the worker was "…unsure how she injured her elbow but she thinks that she may have bumped it on January 20, 2015, while taking boxes from the freezer. Please be advised that [the worker] advised our client that she does not remember bumping her elbow on January 20, 2015 but believes it could be the only plausible reason to account for her discomfort." As well, it was noted by the employer's representative that the worker sought medical treatment on January 28, 2015 but they had not received any information regarding that treatment.

On February 12, 2015, the worker submitted a Worker Incident Report to the WCB noting she injured her left elbow after lifting approximately 10 to 12 boxes from the floor to a cooler than to a cart. She advised that when she "…was on the 5th or 6th box, when I tried lifting it, I felt something pull on my inside arm elbow." She further noted that she called someone to help her lift the remaining boxes.

The worker was seen by her family physician on January 28, 2015. She reported to the physician that she felt "left elbow pain while lifting boxes from ice cream cooler at work." The family physician noted the objective findings of the worker's left arm being "tender at lateral epicondyle, pain with stressing lateral forearm tendons" and recommended rest, light lifting and pain medications until the results of a pending ultrasound are received. The treating family physician noted that the worker had been working with no restrictions as she had been requesting help from her co-workers. The report was updated on March 6, 2015 to include the diagnosis of an elbow strain. The WCB accepted the worker's claim on March 23, 2015. The worker attended physiotherapy from April 30, 2015 until she was discharged on September 23, 2015, with "no significant findings; other than slight tightness in wrist extensors" noted.

On July 24, 2017, the WCB received a copy of a July 11, 2017 report from a sports medicine physician who examined the worker. The sports medicine physician noted that the worker reported "…a five year history of left elbow pain that may have started while doing lifting at work." The physician referred to an MRI study that was conducted in 2016 indicating a 25% partial thickness tear of the extensor tendon. The worker was provided with an injection for pain.

The WCB conducted further investigation into the worker's file and noted that while no medical information was provided between September 2015 and July 2017, the worker had sought medical treatment for her elbow during that time including the MRI study on May 19, 2016 noting the partial thickness tear and a July 4, 2016 assessment by a different sports medicine physician where surgical options for her elbow condition were discussed however, the worker chose to continue with a stretching and strengthening program. On November 11, 2017, the WCB was provided with a report from the worker's treating family physician with a chronological listing of the dates the worker had been seen since 2015 and the physician's opinion that the diagnosis for the worker's elbow was "Partial tear of left extensor tendon (as seen on MRI) on the backdrop of chronic left lateral epichondylitis." An opinion by a WCB medical advisor was provided on December 22, 2017 noting that the worker's current difficulties with her left elbow were related to the January 2015 workplace accident. The worker was advised on January 24, 2018 that the WCB accepted that her current elbow difficulties were the result of her workplace injury.

On June 12, 2018, the worker underwent arthroscopic tennis elbow release surgery and was placed on full wage loss benefits. The employer was advised on June 15, 2018 that the worker's current difficulties were accepted as a recurrence of her injury and she was eligible for full wage loss benefits as of the date of her surgery, being June 12, 2018 until she was fit to participate in a return to work program.

The worker's treating orthopedic surgeon saw the worker for a follow-up appointment on August 16, 2018. The surgeon noted the worker's elbow was continuing to improve with physiotherapy and recommended that she could return to work on modified duties. On September 26, 2018, the WCB advised the worker that a graduated return to work program with modified duties and restrictions of no ladder climbing, lifting up to 2kg with her left hand, no pushing or pulling with her left hand and limiting pinching and gripping with her left hand beginning September 17, 2018 to September 30, 2018 for four hours per day, increasing October 1, 2018 to October 7, 2018 to six hours per day and full regular duties as of October 8, 2018 had been arranged and that she would be paid partial wage loss benefits during those periods. The worker advised the WCB on September 13, 2018 that due to a non-compensable health issue, she would not be participating in the graduated return to work program.

The employer's representative wrote to the WCB on October 4, 2018 requesting that cost relief be granted to the employer noting that the worker had a pre-existing condition, which was confirmed by the WCB medical advisor. On October 12, 2018, the WCB responded to the employer's representative's request indicating that the WCB medical advisor had opined that the normal recovery time for the surgery performed was "anticipated in 12 weeks or so" and 14.86 weeks of wage loss benefits were paid which supported that the worker's pre-existing condition did not significantly prolong her recovery and cost relief was not approved.

At a further follow-up appointment with the treating orthopedic surgeon on November 19, 2018, it was noted that the worker had "…recovered very well from her surgery." And on January 14, 2019, the worker was advised the WCB had determined she had recovered from her workplace injury, did not require any further restrictions and was not entitled to further benefits.

On March 26, 2019, the employer's representative requested reconsideration of the WCB's decision to Review Office. On August 7, 2019, the employer's representative provided a submission in support of their request. The representative noted that since January 20, 2015, the date of the workplace accident, the worker had been provided with modification and accommodation in order to perform her job duties until January 14, 2019 when the WCB had determined she was recovered, which was believed to be an "extensive period" of accommodation, greater than the maximum twelve weeks opined by the WCB medical advisor to be a normal recovery period.

Review Office determined on September 27, 2019, that the employer was not entitled to cost relief. Review Office did not agree with the position of the employer's representative regarding the length of time the worker was provided with job modifications and accommodation. Review Office noted that the employer advised the WCB in February 2015 that the worker was working her regular duties, with a co-worker helping her lift items. Review Office did not accept that this help would constitute an accommodation. Further, Review Office found that the time from October 8, 2018 to January 20, 2019 when the worker did have restrictions in place but was not at work due to a non-compensable health issue was not deemed "time loss" as the employer was not providing an accommodation to the worker. The worker's time loss period was from

June 12, 2018, the date of her surgery, until October 7, 2018, when the WCB determined the worker was able to return to her full regular duties and consisted of seventeen weeks, which Review Office determined was not a significant prolonging of the worker's recovery due to a pre-existing condition.

The employer's representative filed an appeal with the Appeal Commission on October 1, 2019. 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 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 44.10.80.40, 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.

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.

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.

Return-to-Work Programs

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.

Employer's Position

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 was diagnosed with a pre-existing degenerative condition that was likely aggravated by her compensable injury and further, that, as a result of the pre-existing condition, the worker's recovery was greater than the 12 weeks that was predicted as a normal recovery period.

The employer's advocate relied on a report prepared by the WCB medical consultant who reviewed the file and noted that the 2016 MRI findings were likely degenerative but believed the workplace incident aggravated the degenerative condition identified in the MRI.

The employer's advocate submitted that, as a result, the WCB accepted the claim as an aggravation of the worker's pre-existing tendinosis and partial tear of the extensor tendon. This resulted in the worker claiming benefits for time loss as well as surgery being accepted as a result of the compensable injury. The employer submitted that full wage loss commenced June 12, 2018, which was the surgery date, and continued until September 17, 2018, after which partial loss commenced and continued until October 7, 2018, at which time wage loss benefits concluded. In addition, although the worker's wage loss was concluded effective October 7, 2018, she still continued to have ongoing restrictions, and was discharged by her surgeon on November 19, 2018 at which time she was noted to have made a full recovery.

The employer's advocate noted that in a October 12, 2018 correspondence, the WCB denied cost relief to the employer based on the assertion that the total amount of wage loss, both full and partial, provided by the WCB under this claim was 14.86 weeks. The WCB determined that the worker's actual amount of time loss was not significantly prolonged as a result of the worker's pre-existing condition, given that the normal recovery time expected for her surgery was twelve weeks.

However, the employer's advocate submitted that the WCB did not correctly apply the policy as the WCB decision did not take into account that since the January 20, 2015 workplace injury, the worker has been provided with a prolonged period of job modification and accommodation which should have also been considered by the WCB when determining an employer's entitlement to cost relief. The employer's advocate stated in their submission "Generally, the WCB considers time loss to include absences from regular job duties and/or time worked during modified work programs, not just absences from the workplace." (emphasis in original)

As a result, the employer's advocate concluded that "…given the date, extensive periods of accommodation both pre- and post-surgery, surgery, actual lost time and the decision of the Board that a pre-existing condition is present the (sic) should be no question as to cost relief entitlement."

Worker's Position

The worker did not participate in the appeal.

Analysis

The question to be determined on appeal is whether the employer is entitled to cost relief. Under the present WCB legislation and policies, an employer may be entitled to cost relief when "…A claim is either primarily caused by a pre-existing condition or significantly prolonged by the pre-existing condition." In this instance, the panel does not find that the policy requirement has been met for the following reasons.

The worker initially injured her left elbow on January 20, 2015 when she was lifting a box at work and felt something "pull' at her inside arm elbow. The worker was able to continue working her regular duties without restrictions although she did require some assistance at times from her co-workers. This was confirmed by the employer's correspondence dated February 5, 2015 which stated, in part, "Please note that [the worker] has continued to perform her regular job duties and has not lost any time from work." The absence of workplace restrictions was also noted in a report from the worker's treating physician dated February 23, 2015 which stated, in part, "Patient has been coping at work - asks for the help from co-workers - no restrictions." The panel also notes that the worker advised the WCB on March 3, 2015 "That there is no time loss from work due to this injury and she is working full regular duties but gets help with lifting." The worker received physiotherapy treatment between April 2015 and September 2015. The panel notes that none of the reports available indicate a request for workplace restrictions. Further, there is a WCB file note dated August 28, 2015 where the worker confirmed that there was still no time loss from work due to this injury.

There was no further contact between the worker and the WCB until the worker contacted the WCB in August, 2017 as a result of subsequent incident that occurred in April 2017 when she fell over a cart at work. A new claim was submitted to the WCB. As a result of that claim, the worker attended a WCB call-in exam on October 17, 2017. During the call-in exam the worker reported her ongoing left elbow problems.

The WCB then reopened the worker's 2015 claim for her left elbow injury as a recurrence as her ongoing elbow problems were determined not to be related to her 2017 injury. Additional medical information was obtained regarding her ongoing left elbow problems.

The information in the worker's 2015 claim file indicates that she was also receiving concurrent WCB benefits for the 2017 workplace injury that appear to involve modified duties. Additionally during this period of time, the worker was also absent from work for reasons not related to a workplace injury.

The WCB obtained a copy of an MRI that was conducted on May 19, 2016 of the worker's left elbow that reported findings of a 4-mm, 25% partial thickness tear of the common extensor tendon at the attachment to the lateral epicondyle. The panel notes that the report does not identify any degenerative findings in the imaging.

There is a report on file that was prepared by a sports medicine specialist dated July 4, 2016. That report states, in part "She reports pain in the elbow that has been present for many years. The patient became concerned that a bump formed about a year ago. The bump of concern is present on the volar medial aspect of the elbow. This is what led to the MRI being ordered." While it is noted that the treating sports medicine physician references pre-injury elbow pain, there is no further information provided to elaborate on the comment. The panel also notes that there is no mention of the 2015 workplace injury to the worker's elbow in that report.

There is another report dated July 11, 2017 from a sports medicine physician who describes the worker as having "…a 5 year history of left elbow pain that may have started while doing lifting at work."

A report from the worker's family physician dated November 11, 2017 provided an opinion as to the diagnosis of the left elbow difficulties as follows: "Partial tear of the left extensor tendon (as seen on the MRI) on the backdrop of chronic left lateral epicondylitis."

A December 4, 2017 report from a WCB sports medicine consultant stated, in part:

1. Current clinical findings are supportive of left lateral epicondylosis 

2. Initial reports from the treating physiotherapist indicated that she had probable lateral epicondylopathy which appeared to resolve per a September 23/15 report. There is a July 4/16 report from a sports medicine physician who notes the left elbow MRI was ordered because of a bump at the volar medial aspect of the elbow (opposite the area of injury). He further notes that elbow pain was present for many years. Findings on this examination were consistent with a left elbow epicondylopathy as well. A narrative report from the treating family physician indicates that the worker was seen for left elbow issues from 2015-2017. Prior to commenting whether there is an established medical relationship between the current presentation and the workplace injury, it would be useful to clarify the nature of her elbow symptoms prior to the workplace injury.

On December 12, 2017, the WCB wrote to the worker's family physician noting that the family physician had stated in his November 11, 2017 report to the WCB that the worker's "…left elbow pain had been present for many years." As a result, the WCB requested that the worker's family physician clarify the nature of the worker's left elbow symptoms prior to her January 2015 workplace injury and also that the worker's chart notes for the two years prior be provided to the WCB.

In the family physician's December 18, 2017 response to the WCB's request for further information, it was noted that it was not the worker's family physician who had made this statement but instead it was a sports medicine physician who made the comment in his July 4, 2016 report. In addition, the family physician reported that the worker became a patient of that physician in September 2014 and that there was no chart notes on the worker having left elbow pain prior to January 2015. There is no information on file that indicated that the WCB followed up with the correct physician as to the basis for the comment that the workers left elbow pain "…had been present for many years," in light of the worker's family practitioner's statement that there was no report of previous left elbow symptoms.

The WCB sports medicine consultant provided the following information to file on January 14, 2018: 

Lateral epicondylosis occurs with forcefully repetitive hand grasp activities. While the MRI findings are likely degenerative in nature, the January 2015 workplace activities appear to have involved a degree of force (box weight 30-50 lbs) and repetition.

The WCB sports medicine consultant also stated in the same report that it "…appears probable that the current issues with [the worker's] left elbow medically relate to the workplace injury."

Another MRI was performed on the worker's left elbow on February 8, 2018. The findings reported were "Tendinosis and low grade partial thickness tearing of the common extensor tendon origin. The tear has fractionally increased in size since the prior study and currently measures 5 mm."

As a result of the worker experiencing "…progressive and increasing lateral elbow pain…" she was referred to an orthopedic surgeon for an assessment regarding possible surgical treatment. The worker was examined by the orthopedic surgeon who prepared a report dated April 18, 2018 that provided a diagnosis of "chronic left lateral epicondylitis/tennis elbow which has been refractory to a very thorough course of non-operative treatment." Surgical intervention was recommended and the WCB accepted responsibility for the left elbow arthroscopy and tennis elbow release. The WCB's acceptance of the surgical procedure was based on the opinion of the WCB sports medicine consultant who stated in a report dated May 1, 2018 that "Tendinosis and partial tearing of the common extensor tendon are likely degenerative (pre-x) but the workplace activities appear to have caused same to be symptomatic thereby materially influencing the pre-x condition - see Jan18/18 opinion for details." The WCB sports medicine consultant also commented in this report that the recovery was anticipated to be "…in 12 weeks or so."

There is a further memorandum contained in the worker's file dated May 18, 2018 which stated, in part:

I met with [WCB sports medicine consultant] and discussed the claim for my understanding of HCSR (Health Care Services Report).

- If the workplace injury caused the pre-existing condition to be symptomatic. The diagnosis of the compensable injury is epicondylitis and aggravation of pre-x condition. 

- The recent MRI result show that pre-x tears worsened. It could be an enhancement of pre-x condition if related to work duties/epicondylitis.

Surgery occurred on June 12, 2018 which involved the following procedures: left elbow arthroscopy; arthroscopic limited synovectomy of the elbow; and arthroscopic tennis elbow release. As a result of the surgery, the worker was unable to work and received wage loss benefits.

The worker attended post-surgery physiotherapy. A follow-up report from the orthopedic surgeon, based on his August 16, 2018 examination of the worker, indicated that the worker could return to work at that time performing modified duties. However, he noted that due to a medical condition not related to this claim, the worker was unable to return to work at that time.

A three-week graduated return to work program was developed with the employer on this basis and the worker's wage loss benefits were reduced effective September 17, 2018 based on her deemed earning capacity The worker did not return to work at that time due to non-claim related issues. As a result, the worker's wage loss benefits were adjusted to reflect the graduated return to work plan and all wage loss benefits ceased as of October 8, 2018. The file notes indicate that the worker's post-surgery restrictions required further workplace accommodations after her wage loss benefits ceased as of October 8, 2018. However, the worker did not return to work during that time due to non-compensable issues, so further workplace accommodations were not implemented.

The worker was again examined by her orthopedic surgeon on November 19, 2018 at which time he reports that the worker "…has recovered very well from her surgery." The orthopedic surgeon did not indicate the need for further restrictions due to this compensable injury at that time.

As noted above, the issue of a pre-existing condition in the worker's left elbow was first raised in the July 4, 2016 report from the worker's treating sports medicine physician. However, clarification of this comment was not pursued with that physician. Further, the worker's treating physician stated that she had not reported any left elbow difficulties to them and the 2016 MRI did not note any degenerative changes to the worker's left elbow.

While the worker may have been experiencing left elbow pain prior to the January 2015 workplace accident, that, in itself, does not satisfy the panel that the claim was either caused primarily by a pre-existing condition or was significantly prolonged by the pre-existing condition as required by the applicable policy. In making this determination, the panel considered the opinion provided by the WCB medical consultant that the "…tendinosis and partial tearing of the common extensor are likely degenerative" And noted that opinion is not supported by a rationale for why that conclusion was reached. Further, the panel notes that the worker's Incident Report describes the worker as feeling something pull inside her elbow after she had been lifting a number of boxes. In the panel's view, the January 2015 workplace injury was a distinct event that resulted in a substantive change in the worker's left elbow symptomology. If the worker did have a pre-existing left elbow condition, based on the reporting from the worker's family physician, it was not a significant issue that was affecting the worker in a substantial way.

With respect to the duration of time loss, the employer requested the panel consider the "…extensive periods of accommodation both pre- and post-surgery…" when determining whether this claim was significantly prolonged by a pre-existing condition. The panel's finds that the worker did not engage in any modified duties and/or accommodation related to this claim as referenced above. As a result, such consideration is not relevant in this instance.

The panel does note that when the WCB sports medicine consultant was asked as to what the expected recovery time for the kind of surgery the worker was undergoing, he provided an opinion that "Recovery is anticipated in 12 weeks or so." However, the panel views such a response as an expectation as opposed to an absolute determination. In this case, the recovery time from the surgery was approximately 17 weeks. The panel also notes that there were no complications, concerns or issues noted by the orthopedic surgeon who performed the surgery. Based on the foregoing, the panel is satisfied that the worker's time loss resulting from her surgery was not significantly delayed or abnormally long.

The evidence does not support, on the balance of probabilities, that the employer is entitled to cost relief on the basis that the claim was caused by or significantly prolonged by a pre-existing condition.

For all the reasons noted, the employer's appeal is dismissed.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. Kernaghan - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of March, 2020