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 June 16, 2021 to consider the employer's appeal.

Issue

Whether or not the employer is entitled to cost relief.

Decision

That the employer is not entitled to cost relief.

Background

The worker has an accepted WCB claim for a low back injury sustained at work on March 12, 2013 when he was lifting and loading a heavy object while standing on a ladder. On March 18, 2013, the worker's family physician provided an initial diagnosis of musculoskeletal pain and recommended modified duties of office work. On April 2, 2013, the worker was assessed by a physiotherapist who provided a diagnosis of right lumbosacral sprain/strain and gluteal strain and recommended that the worker was capable of modified work with restrictions. The worker returned to work on modified duties on April 2, 2013, with an improvement in symptoms being noted.

On April 23, 2013, the worker underwent a CT scan of his lumbar spine which showed that "There is a shallow broad-based right paracentral disc protrusion without definitive evidence of nerve root impingement. Mild effacement of the anterior thecal sac is noted at L4-L5 due to posterior disc prominence. No definite nerve root impingement is seen."

On May 5, 2013, the worker lifted a heavy object at work, which resulted in an increase in his lower back symptoms. On May 8, 2013, the worker's family physician diagnosed the worker with a shallow disc prolapse at L4-L5 based on his examination of the worker and the results of the April 23, 2013 CT scan and referred the worker to a sports medicine physician. The sports medicine physician subsequently assessed the worker and provided a diagnosis of mechanical low back pain, with a possible resolving right S1 radiculopathy. Further reports from the sports medicine physician noted no radicular symptoms and an updated diagnosis of non-specific low back pain was indicated.

On May 23, 2013, the worker returned to work on modified duties, with restrictions of avoiding bending and heavy lifting, and continued working until September 3, 2013 when the employer advised they were not able to accommodate the worker's restrictions at that time.

The worker attended a call-in examination with a WCB medical advisor on September 10, 2013, who recommended restrictions which were to remain in place for four to six weeks. The WCB medical advisor noted that it seemed the employer could not accommodate the worker within the restrictions and suggested that consideration be given to the worker participating in a physiotherapy-based reconditioning program, with the expectation that he would be fit to return to his regular duties at its conclusion.

The worker participated in the reconditioning program from September 23 to November 1, 2013. On November 28, 2013, the WCB's Compensation Services advised the worker that they had determined that as restrictions were no longer required, he was not entitled to wage loss benefits beyond November 1, 2013.

On July 17, 2020, an employer's representative contacted the WCB. The representative noted that their review of the claim file indicated the worker likely had a pre-existing condition which resulted in a prolonged period of recovery time from the worker's injury, and requested cost relief in favour of the employer for the costs associated with the claim.

The WCB referred the file to the WCB medical advisor for review, and on November 10, 2020, the medical advisor opined that the findings on the April 23, 2013 CT scan "…while likely representing a degree of pre-existing degenerative change, were not of a severity likely to contribute to a significant degree of delay in recovery from the compensable injury." The WCB medical advisor further noted that while the worker had prior WCB claims in regard to back injuries, none of them appeared to have been significant injuries, the worker appeared to recover from all of them, and they would not represent significant pre-existing back conditions. On the same date, Compensation Services advised the employer's representative that the employer was not entitled to cost relief.

On December 16, 2020, the employer's representative requested that Review Office reconsider Compensation Services' decision. The representative noted the minor nature of the worker's mechanism of injury, the prolonged recovery time and their belief that the worker had pre-existing conditions which caused the claim, or significantly prolonged its duration, and submitted that the employer was entitled to cost relief of 100%, or at least 50%, of the costs associated with the claim.

On February 4, 2021, Review Office advised the employer that there was no entitlement to cost relief for a pre-existing condition. Review Office accepted the WCB medical advisor's opinion that the findings on the CT scan were a pre-existing condition but that the pre-existing condition was not the primary cause of the workplace accident. Review Office found that the mechanism of injury, a heavy lift, caused a muscular back strain, and that the criteria for 100% cost relief was therefore not met.

Review Office further found that given the worker's young age and the absence of back difficulties prior to the workplace accident, they agreed with the WCB medical advisor's opinion that the degree of degenerative changes present at the time of injury would not have delayed recovery from the compensable injury. Review Office therefore found that the worker's pre-existing condition did not significantly prolong the claim, and there was no entitlement to cost relief.

On February 25, 2021, the employer's representative appealed the Review Office decision to the Appeal Commission and 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.

WCB Policy 31.05.10, Cost Relief/Cost Transfer – Class E (the "Cost Relief Policy"), outlines circumstances in which claim costs may be removed from the cost experience of a Class E accident employer and assigned to a collective cost pool. This process is called "cost relief."

Circumstances in which cost relief may be available to eligible employers are set out in the Cost Relief Policy and further described in Schedules to that Policy, and include 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. 

… 

• The injury or illness is compensable under policy 44.10.84.40, Further Separate Injuries Subsequent to a Compensable Injury. See Schedule C – Further Separate Injuries Subsequent to a Compensable Injury. 

…

Schedule A to the Cost Relief Policy, Pre-Existing Conditions states, 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.

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 

…

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. 

… 

"Pre-existing condition" is defined in WCB Policy 44.10.20.10, Pre-Existing Conditions, as "…a medical condition that existed prior to the compensable injury."

Employer's Position

The employer was represented by an advocate. The advocate provided a written submission in support of the employer's appeal, which proceeded by way of file review.

The employer's position, as set out in their Appeal of Claims Decision form filed February 25, 2021, was that they were entitled to cost relief and/or the removal of costs from their cost experience record, with details to be provided in their written submission.

In their written submission dated June 8, 2021, the employer's advocate argued that the worker suffered a separate injury on May 5, 2013 when he lifted a heavy object, outside his prescribed limitations, and injured his back. The advocate submitted that the medical reports indicated the worker had been progressing well in his recovery up until then, and that the May 5, 2013 incident constituted a further separate injury subsequent to a compensable injury, and not a recurrence. The advocate submitted that all costs associated with this claim after May 5, 2013 should therefore be removed from the employer's costs experience as per Schedule C to the Cost Relief Policy.

The employer's advocate also submitted that the worker's action that led to the further separate injury, i.e. lifting a heavy object outside his prescribed limitations, was a direct result of the worker's own serious and wilful misconduct. The advocate submitted that as such, the worker should not have received benefits for the first three weeks following the May 5, 2013 incident as per WCB Policy 44.10.30.30, Serious and Wilful Misconduct.

The employer's advocate further submitted that the April 23, 2013 CT scan revealed degenerative pre-existing conditions which were the primary cause of the March 12, 2013 claim, and at the very least, significantly prolonged his recovery. It was submitted that one would not reasonably expect someone with a healthy back to suffer an injury of this severity, or any injury, given the minor mechanism of injury, and that the prolonged recovery time was well beyond recovery norms. The advocate therefore requested 100% cost relief based on the pre-existing condition being the primary cause of the claim, or 50% cost relief based on the pre-existing condition having significantly prolonged the worker's recovery, as per Schedule A to the Cost Relief Policy.

The employer's advocate also argued that the worker was diagnosed with a psychological condition which significantly prolonged recovery and which the WCB accepted as being related to the original compensable injury. The advocate submitted that psychological difficulties had been noted on a previous WCB claim file and constituted a pre-existing condition, but if this was not accepted as such, would qualify as a further separate injury subsequent to a compensable injury.

Worker's Position

The worker did not participate in the appeal.

Analysis

The employer is seeking cost relief for the costs associated with this claim. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the facts and circumstances of this case meet the requirements of the Cost Relief Policy. The panel is unable to make that finding.

The panel notes at the outset that the employer's appeal to Review Office and the decision by Review Office specifically addressed the issue of cost relief with respect to a pre-existing degenerative back condition under Schedule A to the Cost Relief Policy. In their June 8, 2021 written submission, the employer's advocate has advanced a number of other issues or grounds for cost relief, namely:

• whether the worker suffered a further subsequent injury as a result of lifting a heavy object on May 5, 2013 and is therefore entitled to cost relief under Schedule C of the Cost Relief Policy; 

• whether the worker's actions of lifting that object on May 5, 2013 constituted serious or wilful misconduct under WCB Policy 44.10.30.30; 

• whether a diagnosis of a psychological condition involved a pre-existing condition which significantly prolonged the worker's recovery; 

• whether such a diagnosis would constitute a further separate injury subsequent to a compensable injury under Schedule C of the Cost Relief Policy.

The panel finds that the above additional issues or grounds for cost relief have not been addressed by the WCB or considered by Review Office, and in the absence of a Review Office decision on these issues, the panel has no jurisdiction to address these issues.

The employer has also argued that they are entitled to 100% cost relief on the basis that the degenerative pre-existing condition which was identified in the April 23, 2013 CT scan was the primary cause of the March 12, 2013 claim. The panel is unable to accept that argument.

The panel notes that the accepted diagnosis of the worker's compensable injury is a back strain which subsequently evolved into non-specific low back pain. The panel is satisfied that such a diagnosis is consistent with the reported mechanism of injury of lifting and loading a heavy object.

The panel accepts the opinion of the WCB medical advisor, who opined on November 10, 2020 that "In most cases, findings such as those noted on the Apr 23 13 CT scan are considered to be degenerative in nature. Any relationship of the observed disc changes to effects of the ci [compensable injury] would be considered speculative."

The panel is satisfied, on a balance of probabilities, that the evidence supports that the findings on the CT scan were degenerative in nature and that the workplace accident did not structurally affect those pre-existing degenerative changes. The panel therefore finds that the degenerative changes which were identified on the CT scan were not the primary cause of the worker's claim.

As an alternative, the employer has also argued that they are entitled to 50% cost relief, on the basis that the worker's pre-existing condition significantly prolonged the worker's claim. The panel is similarly unable to make that finding.

The panel accepts the November 10, 2020 opinion of the WCB medical advisor that "…the findings noted on The CT scan, while likely representing a degree of pre-existing degenerative change, were not of a severity likely to contribute to a significant degree of delay in recovery from the compensable injury."

The panel notes that information on file shows that the worker had previous WCB claims relating to the back and shoulder, for which he underwent treatment, and that he reported no persisting back problems prior to the March 12, 2013 incident. The panel is not satisfied that these previous injuries would represent significant pre-existing back injuries or would have prolonged the worker's 2013 claim.

In the circumstances, the panel is unable to find, on a balance of probabilities, that the worker's claim was significantly prolonged by a pre-existing back condition, as identified on the CT scan or otherwise.

Based on the foregoing, the panel finds, on a balance of probabilities, that the facts and circumstances of this case do not meet the requirements of the Cost Relief Policy. The panel therefore finds that the employer is not entitled to cost relief, as indicated above.

The employer's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
W. Skomoroh, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 13th day of August, 2021