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 additional cost relief. A videoconference hearing was held on January 26, 2022 to consider the employer's appeal.

Issue

Whether or not the employer is entitled to additional cost relief.

Decision

The employer is not entitled to additional cost relief.

Background

The WCB accepted the worker’s claim for injury to their left knee that occurred at work on October 3, 2018. The injury occurred when a printer the worker was carrying began to slip from their hands. As the worker tried to catch it, they put their knee up and the printer hit the top of the worker’s kneecap, severing the tendons. The WCB accepted the claim for a left quadriceps tendon rupture and the worker underwent surgical repair of the tendon on October 4, 2018.

After a fall at home on October 27, 2018 causing re-rupture of the tendon, the worker required a second surgical repair which took place on November 9, 2018. Subsequently, the worker received physiotherapy and chiropractic care, and on February 19, 2020, underwent a functional capacity evaluation resulting in establishment of permanent restrictions. On February 27, 2020, the WCB provided the employer with the worker's permanent restrictions. On June 9, 2020, the employer advised the WCB the worker was terminated from their position and provided with a severance package. The WCB then initiated vocational rehabilitation services for the worker.

On April 5, 2021, the employer's representative requested cost relief for the claim, noting that due to the "…minor nature of the mechanism of injury and the prolonged recovery time…", it was likely the worker had a pre-existing condition which may have caused the workplace accident or significantly prolonged the worker's recovery from the accident. A WCB medical advisor reviewed the worker's file on April 21, 2021 and concluded there was no evidence of a pre-existing condition. On the same date, the WCB advised the employer's representative the request for cost relief was not approved.

The employer's representative requested reconsideration of the WCB's decision to Review Office on May 7, 2021. In that request, the representative noted the WCB accepted the worker's re-rupture of the compensable injury on October 27, 2018 and second repair surgery on November 9, 2018 as a further injury as defined by the WCB policies. The employer's representative argued that the re-injury and surgery should have been considered as a separate accident causing the worker's current loss of earning capacity. As such, the representative requested the additional claim costs associated with the separate injury be removed from the employer's claim costs.

Review Office determined on June 21, 2021 that the employer was entitled to cost relief for costs associated with the worker's second surgery on November 9, 2018. Review Office found the worker had not healed from the initial surgery and when they fell, they were unable to bend their leg because of the workplace injury causing the re-rupture of the tendon at the site of the previous surgery. Review Office determined this incident to be a further injury subsequent to a compensable injury and found that the employer was entitled to cost relief with respect to the costs associated with the second surgery. Review Office also found there was no entitlement to further cost relief as the second surgery did not delay the worker's recovery or change the outcome of the worker's injury and noted the employer did not accommodate the worker based on their permanent restrictions, and as such, the second surgery did not delay the worker's return to work.

On July 13, 2021, at the WCB’s request, a WCB medical advisor reviewed the worker’s file to determine when the worker had returned to their pre-surgery status. On July 15, 2021, the WCB advised the employer that, based on the opinion of the medical advisor, the worker was considered to have returned to that status as of December 31, 2018, and that cost relief was provided for the expenses occurred between October 27, 2018 when the further injury occurred, and December 31, 2018.

On August 16, 2021, the employer's representative submitted an August 11, 2021 medical opinion from a third-party physician and requested reconsideration of Review Office's June 21, 2021 decision and the WCB’s July 15, 2021 decision as to the employer’s entitlement to cost relief. The representative stated that based upon the third-party medical opinion that the worker "…had pre-existing conditions that significantly prolonged recovery from the original compensable injury", claim costs beyond 6 months from the workplace accident date of October 3, 2018, the typical recovery time for this kind of injury, should be attributed to the worker's further subsequent injuries. The employer’s representative requested 50% cost relief for the pre-existing conditions and that those costs be removed from the employer's cost experience.

On September 16, 2021, Review Office determined the employer was not entitled to cost relief for all claim costs beyond six months post-accident but did find the employer was entitled to cost relief for costs associated with the worker’s second surgery as well as their chiropractic treatments. Review Office found that the worker’s low back strain was caused by their compensable left knee injury and as such was a subsequent injury. Review Office therefore found the employer was entitled to cost relief for the worker’s chiropractic treatments related to the low back strain.

The employer’s representative filed an appeal with the Appeal Commission on October 12, 2021. A videoconference hearing was arranged for January 26, 2022.

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.

The issue on appeal relates to the employer’s request for cost relief. Section 81(1) of the Act provides authority for the WCB to relieve an employer of responsibility for certain claim-related costs, and sets out, in part, that:

Annual assessment for accident fund

81(1) For the purpose of creating and maintaining an adequate accident fund, the board shall every year assess and levy upon and collect from the employers in each class by an assessment or by assessments made from time to time rated upon the payroll, or in such other manner as the board considers advisable or necessary, sufficient funds, according to an estimate to be made by the board in each year 

… 

(c) to provide a fund to meet the part of the cost of claims of workers that, in the opinion of the board, results from:

(i) pre-existing or underlying conditions, 

(ii) an occupational disease where the exposure to the probable cause of the injury occurs outside Manitoba, 

(iii) a loss of earnings from an employment other than that of a worker's employer at the time of the accident, 

(iv) an increase in benefits under subsection 40(5), 45(3) or 45(4), or 

(v) such other circumstances as the board determines would unfairly burden a particular class, sub-class, group or sub-group, or employer;…

The 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 as provided for in s 81(1) of the Act. This process is called "cost relief" and includes circumstances 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 44.10.80.40, Further Separate Injuries Subsequent to a Compensable Injury. See Schedule C - Further Separate Injuries Subsequent to a Compensable Injury.

Schedule A – Pre-Existing Conditions of 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.

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."

Schedule C – Further Separate Injuries Subsequent to a Compensable Injury of the Cost Relief Policy sets out that:

Cost Relief may be provided to the Accident Employer if an injury is compensable as a "further separate injury" under policy 44.10.80.40, Further Separate Injuries Subsequent to a Compensable Injury.

The additional costs associated with the further separate injury are removed from the Accident Employer's Claim Costs Experience.

Policy 44.10.80.40 excludes injuries that are part of the normal course of treatment and recovery from the definition of "further separate injury". Therefore, Cost Relief is not provided for such injuries.

The WCB Policy 44.10.20.10, Pre-existing Conditions (the “Pre-existing Policy”) sets out that the WCB will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury that occurs as a result of accidents that are determined to be arising out of and in the course of employment. This Policy provides that the application of cost relief for pre-existing conditions is set out in Schedule A of the Cost Relief policy and defines a pre-existing condition as “a medical condition that existed prior to the compensable injury.”

WCB Policy 44.10.80.40, Further Separate Injuries Subsequent to a Compensable Injury, (the “Subsequent Injury Policy”) applies to a separate injury that is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. This Policy sets out that a subsequent injury will be compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or 

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or 

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

The Administrative Guidelines to this policy provide that a subsequent accident or injury may be compensable if a relationship between the original compensable injury and the subsequent injury is established where:

1. The original injury causes or significantly contributes to the subsequent injury. For example, the subsequent injury results from a residual weakness in the area of the original injury (e.g., unstable knee) or from the use of a prosthetic devise or other appliance. The test for whether the subsequent accident is compensable may include whether, on balance of probabilities, the unstable knee caused or significantly contributed to the subsequent accident or whether the prosthetic device/appliance malfunctioned or there was extraordinary risk associated with the use of the device/appliance. 

2. The subsequent injury arises out of a situation over which the WCB exercises direct control. For example, the subsequent injury occurs while the worker is participating in a WCB sponsored activity or service (e.g., a work assessment or on-the-job training); or, the subsequent injury occurs when the worker is travelling on transportation arranged and paid for by the WCB (e.g., to attend the WCB offices or a medical appointment arranged by the WCB). 

3. The subsequent injury arises out of the delivery of treatment for the original injury (unless the treatment is not acceptable to the WCB). For example, the worker is injured while being examined or treated (e.g., falls off the examining table or suffers complications from surgery). The subsequent injury would not be compensable if the injury resulted from a hazard of the healthcare providers premises that is not connected to the actual treatment (e.g., the worker slips on ice on the healthcare providers steps or a chair collapses in the healthcare providers offices).

The WCB will not accept responsibility for a subsequent non-compensable injury where there is no causal relationship between the subsequent and the original injury (e.g., a worker with a shoulder injury trips and falls). If the subsequent injury prolongs or aggravates the original injury, the WCB will pay compensation for the estimated time that it would have paid for the original injury had the subsequent injury not occurred.

Employer’s Position

The employer was represented in the hearing by an advocate who made an oral submission on behalf of the employer. The employer also relied upon a witness, a consulting family physician who offered testimony in response to questions posed by the employer’s advocate and by members of the appeal panel.

The employer’s position, as outlined by their advocate in the hearing, is that the employer is entitled to additional cost relief based on the evidence suggesting the worker had a pre-existing condition that significantly prolonged their claim and the evidence of the worker’s further injuries subsequent to and caused by or arising out of the compensable injury. The employer’s advocate submitted that the panel should provide cost relief including removing all costs associated with the quadricep tendon re-tear, 50% cost relief relating to the pre-existing condition and all costs beyond 6 months from the date of accident.

The employer relied upon the evidence of a consulting physician, as set out in their letter to the employer’s representative dated August 11, 2021 as well as the evidence provided by the physician in the course of the hearing.

In the letter of August 11, 2021, the physician stated that the literature on quadriceps tendon tears sets out that risk factors for such tears include age, diabetes, metabolic disease, smoking and poor overall health. The physician stated that the worker had these risk factors based on the medical chart note from the worker’s treating family physician dated November 17, 2020. The physician stated that the:

“Pre-existing conditions on file that significantly prolonged the worker’s claim are: 

1. Age 

2. Diabetes 

3. Thyroiditis 

4. Chronic smoker 

5. Poor overall health due to poor blood pressure control and a chronic respiratory problem… 

6. Minor Chondromalacia Patella at the posterior aspect of the lateral tibial plateau on MRI dated 29 March 2021 (sic) 

7. Chondroplasty of Patella-Grade 2-Chondromalacia of central ridge of Patella 

8. Tenderness LCL-Quads tendon intact 

9. Chronic left knee pain… 

10. Shortened Patella tendon following second surgery.”

The physician, in their letter, also disputed the Review Office’s June 21, 2021 conclusion that the outcome for tendon repair surgery is variable and likely to lead to permanent restrictions. The physician noted that the literature “points out that in healthy subjects less than 40 years of age and no pre-existing conditions both conservative treatments and surgical intervention are highly successful” but the worker was 57 years of age with risk factors and complications “resulting in numerous surgeries and prolonged delays” in their recovery.

In the hearing, the physician witness confirmed to the panel that they are a practicing family physician licensed in Manitoba for some 20 years and possessing a certificate in medico-legal medicine.

The physician witness testified that the normal recovery period for a quadricep tendon tear such as the worker experienced is 6 months and that the normal recovery period for the surgical repair of such an injury is 6 weeks. In the worker’s case, the physician offered an opinion that the worker’s pre-existing conditions played a significant role in delaying recovery and prolonging the claim, particularly those conditions noted in the August 11, 2021 letter as #6-10, as noted above. The physician described these conditions as secondary co-morbidities that caused or contributed to the delay in the worker’s recovery from the initial workplace injury.

In response to panel member questions, the physician confirmed that they have never examined the worker but relied upon the information provided by the employer’s representative. The physician indicated that they did not dispute the WCB medical advisor’s conclusion that the worker’s leg injury contributed to their subsequent low back issues. On questioning from panel members as to the risk factors and pre-existing conditions noted in their August 11, 2021 letter, the physician confirmed that age is not a pre-existing condition but may be a compounding factor in conjunction with other medical conditions. The physician explained that the worker’s pre-existing knee conditions were primary in nature and the other conditions listed, such as diabetes, were secondary. The physician testified the conditions noted in their letter as #6-10 are most relevant, stating that the conditions revealed by the MRI study of March 29, 2019 are likely pre-existing conditions and not related to the injury the worker sustained on October 3, 2018.

In sum, the employer’s position is that the worker’s injury sustained more than 3 years ago has been significantly prolonged beyond the expected recovery period of 6 months and given the evidence of the worker’s pre-existing knee conditions and the further separate injury sustained on October 27, 2018, the employer should be entitled to additional cost relief pursuant to both the WCB policy provisions relating to pre-existing conditions and to further, subsequent injuries.

Worker’s Position

The worker did not participate in the appeal.

Analysis

The issue for the panel to determine is whether the employer is entitled to additional cost relief. To grant the employer’s appeal, the panel would have to determine that evidence supports a finding that the worker’s claim was either primarily caused by a pre-existing condition or significantly prolonged by the pre-existing condition or that the worker’s injury is compensable as a further separate injury subsequent to a compensable injury such that the employer is entitled to additional cost relief. As outlined in the reasons that follow, the panel was unable to make such a determination and the employer’s appeal is therefore denied. 

The employer believes they should be entitled to cost relief as the worker has pre-existing left knee conditions that contributed to the worker’s significantly prolonged recovery from the workplace accident of October 3, 2018. The employer accepts that the initial rupture of the worker’s left quadricep tendon was caused by an acute injury but believes that as a result of the pre-existing conditions, the worker’s recovery has been much longer than the expected duration or normal recovery period for such an injury. The employer also believes there is additional entitlement to cost relief arising out of the further, separate injuries that the worker sustained subsequent to the initial compensable injury.

The panel carefully considered the medical evidence and opinions in the worker’s claim file to determine whether there is support for the employer’s position.

The panel noted that when the worker sustained a re-tear of their quadriceps tendon necessitating a further surgery on November 9, 2018, there was a resultant delay in the worker’s recovery. As set out in the July 13, 2021 opinion of the WCB orthopedic surgery consultant, this second injury caused a delay of some 6 weeks in terms of when the worker was referred for post-surgical physiotherapy. The panel noted that the WCB accepted responsibility for the second surgery as a “further, separate injury subsequent to a compensable injury”.

On reviewing the surgical and post-surgical reports from the initial tendon repair of October 4, 2018 and the re-repair of November 9, 2018, there are no indications of any complications arising directly out of those surgeries. This is also confirmed by the July 13, 2021 opinion of the WCB orthopedic surgery consultant.

On follow-up with the worker on March 20, 2019, the initial treating surgeon queried the cause of the worker’s continuing knee pain and requested a further MRI study. The March 29, 2019 MRI study revealed a small horizontal tear at the posterior horn of the medial meniscus as well as post-surgical changes at the quadriceps tendon, patella and patellar tendon. Based on these findings, the treating surgeon referred the worker to another orthopedic surgeon for consult. In their report to the initial treating surgeon of May 7, 2019, the consulting orthopedic surgeon stated that most of the worker’s continuing pain was due to “anterior interval adhesions and the resultant patella baja. This is a complication of [their] previous surgery and revision surgery.” The consulting surgeon recommended surgical treatment of these issues and noted that in the process, the medial meniscal tear could also be addressed if necessary although “it is quite small on MRI and may be incidental.”

This surgery took place on May 28, 2019. The arthroscopic surgery included lysis of adhesions and patellar release to minimize compression of the patella as well as chondroplasty of the patella. The surgeon confirmed there was no evidence of a medial meniscal tear. Some 9 days following the surgery, the worker required arthrocentesis to relieve post-operative pressure and improve pain. At three weeks post-operatively, the treating surgeon noted greater than expected residual swelling and loss of motion/pain such that the worker was not able to return to work at that time. On July 17, 2019 the surgeon noted the worker had a “rocky postoperative course” and was not improving but did not note “any obvious complication requiring further intervention.”

The WCB also accepted that this third surgery was compensable and related to the workplace injury. On May 22, 2019 the WCB medical advisor approved the lysis of adhesions and patellar release procedures as being “related to the post-operative complication of capsular and synovial adhesions”, and on June 26, 2019 also confirmed that the chondroplasty of the patella was related to the workplace injury “because of immobilization of the knee for the quadriceps tear” noting this pathology was not detected pre-operatively. 

The panel also noted that the worker developed low back and hip symptoms, reported initially by the first treating surgeon on April 10, 2019. The surgeon noted the worker was having hip and back pain related to their altered gait and recommended chiropractic treatment to address this. On May 9, 2019 the WCB medical advisor determined that the worker’s back and hip symptoms were caused by low back strain and noted that an altered gait pattern, such as the worker was reported to present, “is known to cause temporary low back strain during the time when gait is abnormal.” As a result, the medical advisor approved the request for chiropractic care in relation to the workplace injury.

With respect to the employer’s assertion that the worker’s compensable injury and their recovery from that injury was impacted by the worker’s pre-existing conditions, the only evidence before the panel in support of that position is that of the consulting family physician who provided a written opinion dated August 11, 2021 and testified before the panel. The panel notes that although, in the written opinion, the consulting family physician outlined a number of conditions that may have impacted the worker’s claim, in their testimony the physician acknowledged that only the listed conditions related to the worker’s left knee could potentially be considered as pre-existing conditions, while the other conditions listed were either co-morbidities or personal characteristics of the worker. The physician further acknowledged that the knee issues identified in the MRI study of March 29, 2019 could have resulted from the initial injury and the repair of that injury.

In considering the weight to be given to both the testimony provided by the consulting family physician as well as their written report of August 11, 2021, the panel noted the physician confirmed their expertise lies in general family medicine and that they have never examined the worker. The panel further noted that the physician’s comments in terms of the co-morbidities and risk factors were based upon a medical chart note from the treating family physician dated November 17, 2020, more than two years after the date of injury. The panel also noted the physician’s testimony that the panel should disregard a number of the conclusions drawn and statements made in the written opinion. We have therefore given little weight to the written report of August 11, 2021 and where there is disagreement between the consulting family physician’s opinions and those of the treating physicians, or the opinions of the WCB medical advisors, we give greater weight to the physicians who treated the worker and to those with specific expertise in the kind of injuries the worker sustained.

When a WCB medical advisor reviewed the worker’s claim file on September 25, 2020 to determine the worker’s eligibility for a permanent partial impairment (“PPI”) award, the medical advisor determined that there was no evidence of a major pre-existing condition in relation to the impairment of the worker’s left knee. Another WCB medical advisor reviewed the worker’s file on April 21, 2021 and noted “A review of the file, with particular reference to the medical history, MRIs and operative findings does not provide any evidence of a pre-existing condition.”

There is no medical evidence confirming the worker had any left knee concerns prior to the compensable injury. Further, the opinions of the treating orthopedic surgeons support that the worker’s continuing left knee difficulties are a consequence of the compensable injury and the surgical repair of that injury.

The panel therefore concludes, on the standard of a balance of probabilities that the worker did not have any pre-existing condition, as defined by the Pre-existing Conditions Policy. Based on this finding, the panel is satisfied that the employer is not entitled to further cost relief on the basis that the worker’s injury was caused or significantly prolonged by a pre-existing condition.

The panel also considered whether the evidence supports the employer’s request for cost relief on the basis that the worker sustained injury subsequent to the compensable injury that was compensable as a "further separate injury" under the Subsequent Injury Policy.

We find that the evidence before the panel supports the WCB’s determination that the re-injury of the worker’s quadriceps tendon on October 27, 2018 and resultant surgery of November 9, 2018 was compensable as a further injury predominantly caused by the compensable injury. In this case, the worker was in the post-surgical recovery period from the surgical repair of the injury sustained on October 3, 2018 when they got up at night and as they attempted to walk to the bathroom without having put on their knee brace, fell. The fall resulted in a re-rupture of the same tendon initially ruptured and as outlined in the WCB medical advisor’s opinion of December 11, 2018 “In the setting of a recent surgery to repair a torn quadriceps tendon, re-injury is possible, especially without use of the recommended brace.” The panel accepts that in the circumstances, the worker’s quadriceps tendon remained vulnerable to re-injury, and we find that the second tearing of the quadriceps tendon was predominantly caused by the compensable injury and as such this injury and its repair is also compensable as outlined in the Subsequent Injury Policy.

The panel also considered whether the surgical repair of May 28, 2019 was a result of a new intervening incident, event, or exposure or was it a continuation of the original injury. The panel noted that the surgery was recommended to address further issues identified in the worker’s left knee, including anterior interval adhesions and a low-riding patella as well as patellar chondromalacia. The treating surgeon stated in their opinion of May 7, 2019 that these issues were “a complication of [their] previous surgery and revision surgery”. The WCB medical advisor agreed as outlined in their opinions of May 22, 2019 and June 26, 2019. There is no evidence before the panel to suggest that the conditions addressed by the worker’s May 28, 2019 surgery were the result of any intervening incident, event or exposure. Rather, this surgery addressed conditions in the left knee that arose out of and from the surgical repair of the original compensable injury of that knee and as such was a consequence of the original injury.

The panel considered as well whether the worker’s development of a low back strain was the result of a further injury subsequent to the compensable injury. There is no indication in the medical reporting of any diagnosis at the time of the compensable injury relating to the worker’s low back area. The medical reporting rather indicates that the worker’s low back symptoms arose in or around the spring of 2019 due to the worker’s altered gait pattern. The initial treating surgeon stated on April 10, 2019 that the worker was experiencing hip and back pain “related to” their altered gait. The second treating surgeon also noted on assessment on May 7, 2019 that the worker walked with a very antalgic gait. The WCB medical advisor opined on May 9, 2019 that the worker’s hip and back symptoms are “considered to be caused by low back strain” noting that an altered gait pattern “is known to cause temporary low back strain during the time when gait is abnormal.” The WCB medical advisor concluded that chiropractic treatment of the worker’s low back pain “would be appropriate in relation to the workplace injury.” The WCB medical advisor again noted on May 22, 2019 that “A prolonged time of gait disturbance has led to back pain which is currently being treated by chiropractic intervention.” Following the post-surgical recovery period for the May 28, 2019 surgery, the WCB chiropractic advisor noted on July 30, 2019 that the worker’s treating chiropractor reported an “aggravation of the lower back pain as related to the most recent surgery.” The chiropractic advisor agreed to the request for further chiropractic treatment at that time “for the ongoing lower back discomfort as related to the knee dysfunction.” On September 4, 2019 the chiropractic advisor again noted that the worker was experiencing lower back pain “as related to an altered gait as related to knee injury reported October 3, 2018.”

The panel is satisfied that the evidence supports a finding of a causal relationship between the compensable injury sustained and the low back strain injury that the worker subsequently developed. We find that the low back strain was a further injury predominantly attributable to the compensable injury as defined by the Subsequent Injury Policy.

The employer is seeking further cost relief on the basis that the worker’s claim was significantly prolonged as a result of a pre-existing injury; however, as noted above, the panel is satisfied, on a balance of probabilities that the worker does not have a pre-existing condition as defined by the Pre-existing Conditions Policy and therefore, the employer is not entitled to further cost relief on this basis. The employer further seeks cost relief on the basis that the worker’s injuries are compensable as a further separate injury subsequent to the compensable injury as defined in the Subsequent Injuries Policy. As outlined above, the panel is satisfied on a balance of probabilities that the worker’s second quadriceps tendon injury and their low back strain injury are further separate injuries subsequent to the compensable injury and as such, all costs related specifically to those injuries are eligible for cost relief under the provisions of the Cost Relief Policy. But the panel also finds, on a balance of probabilities, that the worker’s knee surgery of May 28, 2019 related to a consequence of the original compensable injury and as such, the employer is not eligible for any cost relief related to the May 28, 2019 surgery under the provisions of the Cost Relief Policy.

The panel therefore concludes that the employer is entitled only to the cost relief as outlined above and is not entitled for further cost relief beyond those entitlements, which are consistent with the findings of the Review Office. The employer’s appeal is therefore denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
W. Skomoroh, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of February, 2022