Decision #139/21 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to 100% cost relief. A file review was held on October 5, 2021 to consider the employer's appeal.
Whether or not the employer is entitled to 100% cost relief.
That the employer is not entitled to 100% cost relief.
A Worker Incident Report filed with the WCB on July 4, 2018 indicated the worker injured his left knee in an incident at work on June 18, 2018. The worker described the incident as "I was standing and squatted down to pick up a piece of metal, causing my knee to pop out of place, then back in. It didn't feel too bad at first but in the next hours, my knee swelled up like a grapefruit and I couldn't walk on it."
The worker sought medical treatment at a local emergency department on June 18, 2018, where the attending nurse practitioner noted "…moderate edema and small amount of bruising to anterior aspect of knee…Negative tenderness to the patella, and to the medial and lateral joint lines. There is decreased range of motion with flexion, but full extension to the joint. Normal ROM (range of motion) to the adjacent hip and ankle without complaints of pain. Negative anterior and posterior drawer test without presence of joint laxity…" An x-ray taken at that time did not identify a fracture or dislocation, and the nurse practitioner diagnosed the worker with a knee sprain. By letter dated August 14, 2018, the WCB's Compensation Services advised the worker that his claim was accepted, and payment of various benefits commenced.
On September 21, 2018, the worker underwent an MRI of his left knee, which indicated "Thickening of a medial plica with extension into the superior patellofemoral compartment. In the correct clinical circumstances imaging findings would support a diagnosis of medial patellar plica syndrome." On September 28, 2018, the worker's file was reviewed by a WCB medical advisor, who opined that the worker's probable diagnosis was left knee medial plica syndrome. The medical advisor noted that a previous knee injury had been reported, but the MRI did not show evidence of a relevant pre-existing condition.
On December 4, 2018, the worker was seen by an orthopedic specialist, who recommended arthroscopic surgery. On December 21, 2018, the worker's file was reviewed by the WCB medical advisor, who opined that the proposed surgery was appropriate and that full recovery would be anticipated approximately four weeks after that.
On January 28, 2019, the worker underwent "Arthroscopy, partial synovectomy with partial fat pad excision and excision medial fibrotic synovial plica." On April 2, 2019, the worker's file was again reviewed by the WCB medical advisor, who opined that "Recovery from the effects of this surgery for this condition by this time would be anticipated." On April 9, 2019, Compensation Services advised the worker that they had determined he had recovered from the June 18, 2018 workplace accident and his entitlement to benefits would end after April 16, 2019.
On April 23, 2021, the employer's representative submitted a copy of an April 22, 2021 medical opinion to the WCB, in which a further physician opined that based on his review of the worker's WCB claim file, the worker had pre-existing conditions which significantly prolonged his claim. The representative submitted that the worker's pre-existing conditions were the primary cause of the claim and requested 100% cost relief for the employer. On June 3, 2021, Compensation Services advised the employer that they were not entitled to 100% cost relief, as the evidence did not suggest the worker had any significant difficulties or functional issues with his knee before the June 18, 2018 workplace accident that either primarily caused the accident or significantly prolonged his recovery.
On June 7, 2021, the employer's representative requested that Review Office reconsider Compensation Services' decision that the employer was not entitled to 100% cost relief.
On June 23, 2021, Review Office determined that the employer was not entitled to 100% cost relief. Review Office noted the worker started his employment in May 2017 and had not reported any left knee difficulties until June 18, 2018, when he squatted to pick up a piece of metal. Review Office acknowledged the worker had pre-existing conditions in relation to his left knee, but found there was no evidence to support those conditions were the primary cause of the workplace accident. As such, Review Office found that the employer was not entitled to 100% cost relief.
On June 24, 2021, the employer's representative appealed the Review Office decision to the Appeal Commission and a file review was arranged.
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 100% 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:
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.
"Pre-existing condition" is defined in WCB Policy 126.96.36.199, Pre-Existing Conditions, as "…a medical condition that existed prior to the compensable injury."
The employer was represented by an advocate. The employer's advocate provided a written submission in support of their appeal, with attachments, including a copy of the April 22, 2021 medical opinion, and the appeal proceeded by way of file review.
The employer's position, as set out in their written submission, was that:
The conflicting mechanisms of injury reported indicate that the [worker's] injury likely did not arise out of and in the course of employment. If it is accepted that it did arise out of and in the course of employment, the [worker's] pre-existing conditions were the primary cause of the accident. If it is accepted that the [worker] injured his knee when he squatted down to pick up a piece of metal, on a balance of probabilities, this minor mechanism of injury would not cause a knee injury in someone with a healthy knee, let alone a knee injury of this severity.
When also considering the [worker's] significant pre-existing knee conditions and the enclosed medical opinion provided by [physician's name], on a balance of probabilities, the [worker's] pre-existing conditions were the primary cause of the accident. But for the pre-existing conditions, this accident would not have occurred.
As such, we request 100% cost relief of the costs associated with this claim as per WCB Policy 31.05.10 Schedule A.
The worker did not participate in the appeal.
The issue before the panel is whether or not the employer is entitled to 100% cost relief. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that a prior or pre-existing medical condition was the primary cause of the worker's June 18, 2018 workplace accident. For the reasons that follow, the panel is unable to make that finding.
The panel notes at the outset that the worker has an accepted claim on this file. While the employer's representative has apparently suggested at the beginning of their submission that the claim itself is not acceptable, claim acceptability is not at issue on this appeal.
Rather, the issue that has been raised on this appeal is very specific, namely: Whether or not the employer is entitled to 100% cost relief. As indicated previously, 100% cost relief will result where a prior or pre-existing condition is determined to be the primary cause of the workplace accident.
In this case, the panel acknowledges that the worker has pre-existing left knee conditions or difficulties. The panel is unable to determine, however, that the evidence supports that such pre-existing conditions were causative of, or the primary cause of, the June 18, 2018 workplace accident.
The panel notes that the accepted diagnosis is left knee plica syndrome. The panel accepts that the reported mechanism of injury of standing, squatting down, then twisting with a planted foot to pick up a piece of metal is consistent with the accepted diagnosis and causative of the June 18, 2018 workplace accident and injury.
The panel further accepts and agrees with the September 28, 2018 opinion of the WCB medical advisor that "Although there are reports of a previous knee injury, the MRI did not reveal evidence of a relevant pre-existing condition."
The panel acknowledges the April 22, 2021 opinion from another medical practitioner which the employer has submitted in support of its position. The panel has reviewed and considered that medical opinion. With respect, however, the panel is unable to attach any weight to that opinion which, in the panel's view is speculative and not supported by the evidence in this case.
Based on the foregoing, the panel finds, on a balance of probabilities, that a prior or pre-existing medical condition was not the primary cause of the worker's June 18, 2018 workplace accident. 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 100% cost relief.
The employer's appeal is dismissed.
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 3rd day of December, 2021