Decision #111/21 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to cost relief. A file review was held on April 27, 2021 to consider the employer's appeal.
Whether or not the employer is entitled to cost relief.
The employer is not entitled to cost relief.
A Worker Incident Report provided to the WCB on April 19, 2018 indicated the worker sustained injury to their lower back as a result of working in a confined space for a long period of time on March 29, 2018. The worker first sought treatment on April 16, 2018 and was diagnosed with a lumbar sprain/strain. At a physiotherapy assessment on May 4, 2018, the worker was diagnosed with an L5-S1 disc injury with L5 radicular pain on the right and it was recommended the worker remain off work for three weeks. After initially denying the worker’s claim, the WCB investigated and accepted the worker’s claim on July 9, 2018.
The worker continued with physiotherapy treatment and on August 14, 2018 at the request of the WCB, attended for a call-in examination with a WCB medical advisor. The medical advisor concluded the worker’s diagnosis was of “non-specific low back pain subsequent to the initial thoracolumbar strain injury” with intermittent symptoms in the worker’s right leg attributed to radiculopathy, but noted the examination findings did not suggest radiculopathy. The WCB medical advisor outlined that the natural history of recovery from a lumbar strain was “…for gradual recovery over a period of a few days to a few weeks. If a specific disc injury is implicated, recovery may be somewhat longer, measured in terms of weeks or months. This would be similar in the case of radiculopathy.” The medical advisor noted the worker’s recovery was not satisfactory and that there was no evidence of a relevant pre-existing condition. A reconditioning program was recommended.
On September 20, 2018, the WCB advised the worker that the reconditioning program would commence September 24, 2018 and end on October 22, 2018, with the expectation the worker would be able to return to work on October 23, 2018. On October 23, 2018, the WCB advised the worker their claim file was being closed as they had completed the reconditioning program and were medically capable of returning to their regular full time job duties.
The employer’s representative contacted the WCB on September 16, 2020 and requested cost relief on behalf of the employer for the costs associated with the worker’s claim noting that given “…the minor nature of [the workplace accident], the prolonged period of recovery time is well beyond recovery norms and it is likely that a pre-existing condition exists.” The WCB advised the employer’s representative on October 26, 2020, the request for cost relief was denied as an August 17, 2018 opinion from a WCB medical advisor found no evidence of a pre-existing condition that prolonged the worker’s recovery from the workplace injury.
The employer’s representative requested reconsideration of the WCB’s decision to Review Office on November 20, 2020. The representative noted the medical advisor’s opinion of August 14, 2018 that the worker’s recovery was prolonged and that the medical advisor on June 21, 2018 opined that MRI findings of a shallow right foraminal disc bulge at L5-S1 without nerve root compression or stenosis “may or may not relate to the effects” of the workplace accident. The employer’s representative argued that in the absence of any medical evidence to the contrary, the findings of the MRI and the worker’s prolonged recovery time, suggested the worker likely did have a pre-existing disc bulge at L5-S1 and as such, the employer should be entitled to 50% cost relief for the worker’s claim.
Review Office found on January 11, 2021, the employer was not entitled to cost relief. Review Office acknowledged the worker’s recovery time was longer than the normal expected length of time but without evidence of a pre-existing condition, Review Office could not establish a basis to allow for cost relief for the employer.
The employer’s representative filed an appeal with the Appeal Commission on February 1, 2021. A file review was arranged for April 27, 2021.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. When the requested information was received it was shared with the interested parties for comment. A further submission in response was provided by the employer’s representative including new evidence that the panel did not request. On September 8, 2021, the appeal panel met again to further discuss the case and render a final decision on the issue under appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies established by 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 of the Act outlines that wage loss benefits will be paid when an injury to a worker results in a loss of earning capacity until such time as the worker’s loss of earning capacity ends, or the worker reaches 65 years of age.
The WCB Policy 31.05.10, Cost Relief/Cost Transfer - Class E (the "Cost Relief Policy") is intended to ensure fairness and accountability to 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.
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.
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 evidence supports a finding that the worker, more likely than not, had a pre-existing back condition that caused the worker’s recovery from the workplace injury to be prolonged beyond a normal recovery period for an injury of that nature.
The employer’s representative outlined in their submission of April 19, 2021 the employer’s position that the medical evidence indicates the worker had pre-existing lumbosacral radiculopathy arising out of a bulging disc at the L5-S1 level of the worker’s spine, which more likely than not resulted in the prolonged duration of the claim beyond recovery norms and is the primary cause of the worker’s symptoms. The employer believes that the minor mechanism of injury would not account for the prolonged recovery time, and that in light of the MRI findings, the worker’s lower back condition can only be explained as resulting from a pre-existing condition.
Further, the employer’s representative submitted that in the absence of evidence to support a diagnosis beyond a lumbar strain injury, the WCB incorrectly adjudicated the worker’s claim by authorizing payment of benefits beyond the typical recovery norms for such an injury and therefore the associated costs should be removed from the employer’s account.
In sum, the employer’s position is that the WCB incorrectly determined that the worker did not have a pre-existing condition that prolonged the worker’s claim or caused the worker’s symptoms.
The worker did not participate in the appeal.
The question to be determined on appeal is whether the employer is entitled to cost relief. Under the provisions of the Act and the Cost Relief Policy, 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.
As a preliminary matter to the determination of the issue before it, the panel considered whether to receive and review additional evidence provided to the Appeal Commission by the employer after the non-oral hearing date, together with its submission in response to the medical information requested by the panel. The panel determined that it would not consider any new evidence, as it was not provided at the time of the hearing nor requested by the panel in follow up to the hearing. Therefore, the additional documents were not reviewed by or considered by the panel in reaching its decision on this appeal.
The Cost Relief Policy permits the WCB to reallocate the costs of a claim from the employer in certain specified circumstances. In this case, the employer is seeking to have their costs reduced by 50% on the basis that the worker’s claim is either primarily caused by a pre-existing condition or the worker’s claim was significantly prolonged by the pre-existing condition. In order to grant the employer’s appeal, the panel would need to determine that the worker’s claim was impacted by a pre-existing condition. The panel therefore considered the medical reporting and opinions available as to whether or not there was any evidence of a pre-existing condition related to the worker’s lower back area.
The panel requested and reviewed the chart notes provided by the worker’s treating family physician as well as the reporting of the treating professionals to the WCB with respect to the worker’s claim. We note the reports provide no evidence or indication of any prior back injury or lower back complaints by the worker.
The opinion provided by the WCB medical advisor on June 25, 2018 indicates that the probable diagnosis in relation to the reported mechanism of injury is of right sided lumbosacral radiculopathy, with symptoms that evolved over time from initial low back pain to subsequent right leg symptoms as recorded by the treating healthcare providers. The medical advisor at that time noted that there were reports of gradual improvement over the three months since the injury which was within normal recovery range at that point.
The panel also considered the diagnostic findings arising out of the investigation of the worker’s compensable injury and note that the MRI study of June 21, 2018 indicated a shallow right foraminal disc bulge at L5-S1 without nerve root compression or stenosis. The WCB medical advisor, in an opinion provided August 14, 2018 after completing a call-in examination of the worker, concluded that the MRI findings were “relatively minor” and may or may not relate to the effect of the workplace accident, but that the worker at that time continued to experience non-specific low back pain subsequent to the initial thoracolumbar strain injury, with continuity of symptoms since the date of injury. The medical advisor commented that the worker’s recovery was not satisfactory and further, that there was no evidence of any relevant pre-existing condition.
Although the employer, in their submission, relies upon the findings of the medical advisor that the worker’s recovery surpassed the typical recovery norms for an injury such as was sustained by the worker, the employer does not accept the medical advisor’s conclusion that there is no evidence of any relevant pre-existing condition, stating that the prolonged recovery in combination with the MRI findings supports that there must be a relevant pre-existing condition.
The panel notes there can be multiple reasons for a prolonged recovery from a lower back strain injury, including an injury that has aggravated or enhanced a pre-existing condition, but not every prolonged recovery is the result of a pre-existing condition or the impact of an injury upon such a condition. In order to find in favour of the employer, the panel would have to find there is evidence of such a pre-existing condition. Here there is none, as confirmed by the opinions of the WCB medical advisor and as supported by the medical chart notes provided by the treating family physician and the medical reporting to the WCB in relation to the worker’s claim.
On the standard of a balance of probabilities, the panel is unable to find that the worker’s claim was caused by or significantly prolonged by a pre-existing condition. Therefore, the employer is not entitled to the cost relief requested.
The employer's appeal is dismissed.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of September, 2021