The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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 August 26, 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 left rotator cuff strain/tendinosis of the subscapularis tendon that occurred at work on April 3, 2019, when a heavy item he was lifting slipped and pulled his left arm in a downwards motion.

The worker continued working, with restrictions, and missed limited time for medical appointments. At the request of the worker's treating sports medicine physician, an MRI of the worker's left shoulder was expedited by the WCB and took place on May 23, 2019. The MRI indicated a "Small amount of tendinosis and fissuring of the most cephalad fibers of the subscapularis tendon," with a normal long biceps tendon, and no labral tear was demonstrated.

After reviewing the MRI results, the treating sports medicine physician recommended a different physiotherapy treatment, which the worker commenced on May 31, 2019. The treating physiotherapist diagnosed the worker with "Subscapularis/biceps tendinopathy, impingement secondary to ++tight muscles, trigger points in left upper fibres traps, latissimus and pectorals" and recommended continuing restrictions of no lifting above shoulder height.

On July 19, 2019, the worker received a pain injection in his left shoulder from his treating sports medicine physician. The physician subsequently referred the worker to a second sports medicine physician for an ultrasound guided subacromial injection, which was performed on October 28, 2019.

On October 17, 2019, the worker's file was reviewed by a WCB medical advisor, who opined that the probable diagnosis for the April 3, 2019 workplace injury was a left shoulder rotator cuff strain, with the current diagnosis being tendinosis of the left subscapularis tendon, which was medically accounted for in relation to the workplace accident. The medical advisor also noted the worker's progress in recovery "…has been very slow."

As the worker's progress continued to be slow, the worker attended a call-in examination with the same WCB medical advisor on January 16, 2020. Following that examination, the WCB medical advisor opined that "The worker reports ongoing symptoms in the left shoulder region particularly over the left scapula. He reports that he has recovered at least 85% to 90%. The current residual symptoms are likely due to the workplace injury." The medical advisor noted that approximately 37 weeks had passed since the workplace accident and further physiotherapy did not appear to be necessary or beneficial. The medical advisor further noted that the worker appeared to be "…somewhat deconditioned…" and recommended temporary restrictions for one month of avoiding lifting more than 30 pounds and driving a forklift up to three hours per day, increasing by one hour per day each week. On February 4, 2020, the treating sports medicine physician outlined further restrictions, which were subsequently updated.

The worker continued to work modified duties, with restrictions. Based on a request from the employer's representative, the worker's WCB case manager requested a further review of the worker's restrictions, which was referred to a WCB orthopedic consultant. On April 23, 2020, the WCB orthopedic consultant opined that the worker's current presentation was accounted for based on the April 3, 2019 work-related injury and confirmed that the worker's current restrictions, as outlined by the treating sports medicine physician, were appropriate and should be reviewed on a monthly basis.

On May 25, 2020, the employer's representative provided the WCB with a copy of an Occupational Functional Abilities Form which had been completed by the worker's treating sports medicine physician on May 22, 2020, and requested the WCB review the worker's file for cost relief, "…given the prolonged nature of this claim…" On May 26, 2020, the WCB's Compensation Services advised the employer that there was no basis for cost relief, as the conditions under the WCB's cost relief policy had not been met.

On June 26, 2020, the worker was seen by an orthopedic surgeon, who advised that the worker did not require surgery but recommended further physiotherapy.

On August 27, 2020, Compensation Services determined that based on the accepted diagnosis, the treatment provided, lack of objective medical findings, and time that had passed, any ongoing symptoms or issues would not be related to the workplace injury which had occurred more than one year earlier. Compensation Services determined that the worker was therefore not entitled to benefits beyond September 11, 2020, which decision was upheld by Review Office on January 5, 2021.

On December 9, 2020, the employer's representative requested that Review Office reconsider Compensation Services' May 26, 2020 decision that the employer was not entitled to cost relief. The representative noted that the past medical history as reported by the worker's treating orthopedic surgeon on June 26, 2020 referred to a blood disorder, and submitted that the worker's blood disorder was a "…primary factor in prolonging and delaying his recovery from his compensable injury…" The representative therefore requested that the Review Office decision be varied to grant the employer 50% cost relief.

On February 1, 2021, Review Office determined the employer was not entitled to cost relief. Review Office noted the medical evidence on the worker's file did not support the worker was experiencing any problems related to the blood disorder. Review Office found that while it was possible in theory that the blood disorder could delay healing of an injury, the employer's position on this matter was speculative and not supported by the worker's treating healthcare providers. Review Office concluded that the evidence on file did not support the worker's pre-existing condition significantly prolonged the claim.

On March 18, 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 claim costs experience of a Class E 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 due to a pre-existing condition.

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.

Schedule A to the Cost Relief Policy states, in part:

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…

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 was that there was evidence of a pre-existing condition and the claim satisfied the WCB's criteria for cost relief.

The employer's advocate noted that the worker sustained a left rotator cuff strain and tendinosis of the subscapularis tendon, and was deemed temporarily disabled by that injury from the date of accident to September 11, 2020, amounting to a period of 525 days. The advocate submitted that the average recovery time "established by the Official Disability Guidelines" for the combined diagnosed conditions was 106 days, and the length of the worker's recovery was therefore five times greater than the average recovery time frame.

It was noted that the treating orthopedic surgeon reported on June 26, 2020 that the worker's past medical history was positive for a blood disorder. The advocate submitted that this disorder reduces the production of hemoglobin, and can lead to anemia, which causes a lack of oxygen to the muscles and tissues of the body and will result in delayed or even halted healing.

The employer's advocate submitted that in a medical opinion provided June 1, 2020, the WCB orthopedic consultant found that the "innocuous" mechanism of injury, as well as the limited pathology defined in the worker's MRI results "cannot readily account for ongoing disablement." The advocate submitted that the most plausible explanation for the prolonged recovery would therefore be related to the worker's diagnosed pre-existing blood disorder.

The employer's advocate observed that while Review Office opined that the employer's position was speculative, even though it was possible in theory, no medical opinion was sought to confirm how the blood disorder actually could have impacted the worker's recovery. The advocate submitted that given the WCB did not seek clarification with respect to the pre-existing blood disorder, it would be speculative to assume the worker's prolonged recovery by 419 days was not the result of this condition.

In conclusion, the advocate submitted that based on the evidence, the employer was entitled to 50% cost relief as per Schedule A of the Cost Relief Policy.

Worker's Position

The worker did not participate in the appeal.

Analysis

The issue before the panel is whether or not the employer is entitled to cost relief. The employer is seeking 50% cost relief on the basis that the worker had a pre-existing condition which significantly prolonged his claim. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the employer's request satisfies the requirements of the Cost Relief Policy. For the reasons that follow, the panel is unable to make that finding.

As indicated above, the employer has not suggested that the worker's accident was caused by a pre-existing condition or that the requirements of the Cost Relief Policy for 100% cost relief have been met. Rather, the employer requests 50% cost relief on the basis that the worker had a pre-existing condition which significantly prolonged his claim.

For the employer to be eligible for 50% cost relief, the panel must find that the worker had a pre-existing condition and that the pre-existing condition significantly prolonged the claim. The panel is unable to make that finding.

The panel notes that the employer relies on a single reference in the treating orthopedic surgeon's June 26, 2020 report to the worker's past medical history being positive for a blood disorder. The panel acknowledges this reference to a past history of a blood disorder. However, the panel is unable to identify any reference or indication in that report to this past medical history or condition having impacted the worker's ongoing left shoulder difficulties or impeded his recovery.

While the employer's advocate has argued that such a condition "can" lead to anemia, the panel finds, based on our review of all of the medical information on file, that there is an absence of clinical findings with respect to such a condition or symptoms arising therefrom. In the circumstances, the panel is unable to find that the medical evidence supports that the worker is experiencing or has experienced difficulties related to this disorder or that his recovery or progress has been prolonged or impeded by this disorder, and finds that the employer's position on this point is entirely speculative.

The panel notes that the Cost Relief Policy is specific as to the situations in which cost relief may be available. The Cost Relief Policy and Schedule A to the Policy specifically provide for cost relief where a claim is significantly prolonged by a "pre-existing condition." Whether a claim has been significantly prolonged depends on the facts of each case. In this case, the panel is satisfied that the evidence does not support that the claim was significantly prolonged by a pre-existing condition.

The employer's advocate has referred to average recovery times established by "Official Disability Guidelines," indicating that the claim has far exceeded what is set out in those guidelines. The panel notes that a concern or the assertion that the claim has gone on too long or has exceeded or far exceeded suggested average recovery times is not in itself a basis for cost relief.

Based on the foregoing, the panel is unable to find that the worker's claim was significantly prolonged by a pre-existing condition. The panel finds, on a balance of probabilities, that the employer's request does not meet the requirements of the Cost Relief Policy. The employer is therefore not entitled to cost relief.

The employer's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 25th day of October, 2021