The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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 September 22, 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 claim for a right shoulder labral tear/partial subscapularis tear sustained in a workplace accident on July 17, 2018. The worker described the accident as: "We were bringing a compressor up the stairs. We were using the stair lift and you still have to stabilize it while using the lift. I grabbed it quickly and I turned the wrong way while stabilizing it and I felt a sharp pull in the shoulder and it just stayed there."

The worker sought medical attention on July 18, 2018, and was diagnosed with a rotator cuff strain. The treating physician recommended light duties, with no overhead work or heavy lifting for the next two weeks, and if that was not possible, that the worker remain off work. The employer was unable to accommodate the worker's restrictions.

On August 14, 2018, the worker underwent an MRI of his right shoulder, which indicated:

1. Small near full-thickness tear of the most cephalad fibers of the subscapularis tendon. Mild supraspinatus infraspinatus tendinosis. Mild subacromial/subdeltoid bursitis. 

2. Probable tearing of the posterosuperior labrum. 

3. Mild acromioclavicular joint osteoarthritis.

The worker was referred to an orthopedic surgeon. On September 11, 2018, the orthopedic surgeon sought approval from the WCB for arthroscopic surgery, which approval was granted on September 21, 2018. On December 3, 2018, the worker underwent a right shoulder scope, superior and posterior labral repair.

Following the surgery, the worker attended physiotherapy treatments. On March 6, 2019, the treating orthopedic surgeon noted the worker had full range of motion and no tenderness, but still had a positive O'Brien's test. The surgeon recommended the worker be referred for a work hardening program, with a suggested return to work date of April 15, 2019.

On March 15, 2019, a WCB physiotherapist consultant approved a four-week reconditioning program, with a start date of March 25, 2019 and end date of April 19, 2019. On April 16, 2019, the treating physiotherapist requested an extension of the reconditioning program for another eight sessions, to help improve the worker's strength and endurance, which extension was approved by the WCB on April 17, 2019. The reconditioning program was completed on May 3, 2019, and the worker returned to his full regular duties on May 6, 2019.

On July 15, 2020, the employer's representative requested cost relief for the employer, noting that the "…prolonged period of recovery time for this injury is well beyond recovery norms and it is likely that a pre-existing condition exists." On July 20, 2020, the worker's file was reviewed by a WCB medical advisor, who noted that tendinosis of the rotator cuff tendons and degenerative arthritis of the acromioclavicular joint were seen on the MRI. The medical advisor opined that "These would be pre-existing conditions but the treating surgeon did not feel they were the source of [the worker's] workplace injury symptoms…" and that the "…pre-existing conditions did not materially prolong [the worker's] recovery." On August 11, 2020, the WCB's Compensation Services advised the employer's representative that their request for cost relief was denied.

On November 24, 2020, the employer's representative requested that Review Office reconsider Compensation Services' decision. The representative submitted that the minor nature of the mechanism of injury, combined with the MRI results which showed mild supraspinatus infraspinatus tendinosis and mild acromioclavicular joint osteoarthritis, suggested that the worker had significant pre-existing conditions which put him at a higher risk of injury, and that this was likely the primary cause of the worker's injury. The representative submitted that one would not reasonably expect a shoulder injury of this severity, or any injury at all, given the minor nature of the mechanism of injury, and the employer was therefore requesting 100% cost relief.

On January 6, 2021, Review Office determined that there was no entitlement to cost relief. Review Office found that the worker's pre-existing conditions were not a significant contributing factor in the worker's recovery. Review Office accepted that the worker's injury symptoms were attributable to the SLAP (superior labrum anterior and posterior) lesion which was surgically repaired, and found that the SLAP lesion and associated treatment the worker received were the cause of, and what contributed to, the length of the worker's claim.

On June 24, 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 under the Act, 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 pre-existing conditions.

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, as follows:

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.

…

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 employer's advocate provided a written submission in support of their appeal, which proceeded by way of file review.

The employer's position was that there was evidence of pre-existing conditions which, on a balance of probabilities, were the primary cause of the workplace accident, or at the very least, significantly prolonged the worker's recovery, and the employer is entitled to cost relief.

The employer's advocate submitted that considering the minor mechanism of injury, "but for" the worker's pre-existing degenerative osteoarthritis and tendinosis, the worker's right shoulder injury would likely not have occurred. The advocate submitted that it was likely the pre-existing conditions had weakened the injured area of the worker's shoulder or there was some degree of tearing in the shoulder prior to the incident, and the act of stabilizing the compressor while on a stair lift tore an already compromised shoulder or enhanced a tear that was already there. The advocate noted that the fact the injury was originally diagnosed as a strain was consistent with what would have happened in someone with a healthy shoulder. It was submitted that given the minor mechanism of injury, the most likely explanation for the severity of the injury was the worker's pre-existing conditions, and that as such, the pre-existing conditions were the primary cause of the accident.

In the alternative, the employer's advocate submitted that at the very least, the worker's pre-existing conditions contributed to and increased the severity of the injury, thereby significantly prolonging the claim. It was submitted that this was supported by the fact the worker did not fully recover from the injury, and ultimately had to quit his job to find less physically demanding work. It was also supported by the fact the worker received a permanent partial impairment ("PPI") award due to a permanent loss of function. The advocate submitted that the most likely explanation for the worker's prolonged recovery time and permanent functional impairment was the pre-existing conditions.

In conclusion, the advocate submitted that the employer was entitled to 100% cost relief in respect of the costs associated with this claim, based on the worker's pre-existing conditions being the primary cause of the worker's accident, or 50% cost relief, based on the pre-existing conditions having significantly prolonged the claim, in accordance with 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 100%, or alternatively 50%, cost relief on this claim based on pre-existing conditions. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the employer's request for cost relief satisfies the requirements of Schedule A to the Cost Relief Policy. For the reasons that follow, the panel is unable to make that finding.

For the employer to be eligible for 100% cost relief, the panel must find that a pre-existing condition or pre-existing conditions were the primary cause of the worker's July 17, 2018 workplace accident.

The employer relies on the results of the August 14, 2018 MRI as revealing that the worker had pre-existing degenerative osteoarthritis and tendinosis which, it was submitted, were the primary cause of the accident. While the employer's advocate argued that it was likely the pre-existing conditions weakened the worker's shoulder or that some degree of tearing was present in the shoulder previously, the panel finds that the available medical or clinical information does not support such an assertion.

Based on our review of the information which is before us, the panel is satisfied that the accepted diagnosis of a right shoulder labral tear/partial subscapularis tear is consistent with the mechanism of injury as described, and that the workplace accident on July 17, 2018 was the primary cause of the worker's claim.

Alternatively, the employer has argued that at the very least, they should be entitled to 50% cost relief. For the employer to be eligible for 50% cost relief under Schedule A of the Policy, the worker must have a pre-existing condition and his time loss must have exceeded 12 weeks.

The panel accepts that the worker had pre-existing degenerative conditions which were identified on the August 14, 2018 MRI as "Mild supraspinatus infraspinatus tendinosis" and "Mild acromioclavicular joint osteoarthritis." The evidence further shows that the worker's time lost from work was greater than 12 weeks. These two requirements have therefore been satisfied.

The final requirement for eligibility for 50% cost relief, however, is that the pre-existing condition or conditions significantly prolonged the claim. The panel is not satisfied that this requirement has been met.

Rather, the panel finds that there is an absence of compelling medical evidence that the worker's pre-existing condition or conditions, either alone or in combination, impacted the worker's recovery in a material way or at all, or interfered with his recovery.

In this regard, the panel notes that the August 14, 2018 MRI report specifically refers to the identified conditions of tendinosis and osteoarthritis as being "mild", as opposed to serious or significant.

The evidence also shows that the worker underwent arthroscopic surgery on December 3, 2018 consisting of a superior and posterior labral repair. In his Operative Note of that procedure, the surgeon indicated that the worker's symptoms were more in keeping with a SLAP lesion, and the procedure which was performed was a superior and posterior labral repair. It is the panel's understanding that the procedure was directed towards and performed in a different area of the shoulder from the area where the pre-existing conditions were located, and the procedure was not concerned with nor did it address those conditions.

The panel places weight on the August 11, 2020 opinion of the WCB medical advisor who stated that the "…tendinosis of the rotator cuff tendons and degenrative (sic) arthritis of the acromioclavicular joint seen on the MRI…would be pre-existing conditions but the treating surgeon did not feel they were the source of [the worker's] workplace injury symptoms…" The medical advisor noted that the treating surgeon attributed the worker's workplace injury symptoms to the SLAP lesion, which was surgically repaired. The advisor went on to opine that the pre-existing conditions "…did not materially prolong [the worker's] recovery."

The panel notes that the presence or impact of a pre-existing condition was addressed by a different WCB medical advisor when considering the worker's eligibility for a permanent impairment award. The medical advisor reviewed the medical information on file and opined, on December 5, 2019, that "There is no evidence of a major pre-existing condition in relation to the PPI."

The panel acknowledges the employer's argument that the worker did not fully recover, as evidenced by his subsequent receipt of a PPI award due to a permanent loss of function and his having to quit his job to find less demanding work, and that this supported their position that the pre-existing conditions significantly prolonged the claim. However, the panel is unable to accept the employer's argument that this supported that the pre-existing conditions significantly prolonged the claim, or to relate any ongoing symptoms or difficulties to the presence or impact of pre-existing conditions.

Based on the foregoing, the panel is unable to find, on a balance of probabilities, that the worker's claim or accident was primarily caused, or significantly prolonged, by a pre-existing medical condition or conditions as identified on the August 14, 2018 MRI or otherwise. The panel therefore finds that the employer's request does not meet the requirements of Schedule A to the Cost Relief Policy, and the employer is not entitled to cost relief.

The employer's appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 19th day of November, 2021