Decision #44/22 - Type: Workers Compensation
The employer appealed the decision made by the Workers Compensation Board ("WCB") that the worker did not have a further injury on May 5, 2013 subsequent to the March 12, 2013 compensable injury. A videoconference hearing was held on March 1, 2022 to consider the employer's appeal.
During the course of the appeal, it was clarified and confirmed with the employer's representative the issue to be addressed is whether or not the worker had a further injury subsequent to the March 12, 2013 compensable injury.
Whether or not the worker had a further injury subsequent to the March 12, 2013 compensable injury.
The worker did not have a further injury subsequent to the March 12, 2013 compensable injury.
This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 102/21, dated August 13, 2021. The background will therefore not be repeated in its entirety.
The worker has an accepted WCB claim for a low back injury sustained at work on March 12, 2013 when they were lifting and loading a heavy object while standing on a ladder. On April 2, 2013, the worker was assessed by a physiotherapist who provided a diagnosis of right lumbosacral sprain/strain and gluteal strain and recommended that the worker was capable of modified work with restrictions. The worker returned to work on modified duties on April 2, 2013, with an improvement in symptoms being noted. On April 23, 2013, the worker underwent a CT scan of their lumbar spine which showed that "There is a shallow broad-based right paracentral disc protrusion without definitive evidence of nerve root impingement. Mild effacement of the anterior thecal sac is noted at L4-L5 due to posterior disc prominence. No definite nerve root impingement is seen."
On May 8, 2013, the worker reported to their treating physician "He hurted (sic) himself again on May 5th, 2013 after lifting heavy object." On May 8, 2013, the worker's family physician diagnosed the worker with a shallow disc prolapse at L4-L5 based on an examination of the worker and the results of the April 23, 2013 CT scan and referred the worker to a sports medicine physician. The sports medicine physician subsequently assessed the worker and provided a diagnosis of mechanical low back pain, with a possible resolving right S1 radiculopathy. On May 23, 2013, the worker again returned to work on modified duties, with restrictions of avoiding bending and heavy lifting, and continued working until September 3, 2013 when the employer advised they were not able to accommodate the worker's restrictions at that time.
The worker attended a call-in examination with a WCB medical advisor on September 10, 2013, who recommended restrictions which were to remain in place for four to six weeks. The WCB medical advisor noted that it seemed the employer could not accommodate the worker within the restrictions and suggested that consideration be given to the worker participating in a physiotherapy-based reconditioning program, with the expectation that they would be fit to return to regular duties at its conclusion. The worker participated in the reconditioning program from September 23 to November 1, 2013. On November 28, 2013, the WCB's Compensation Services advised the worker that they had determined that as restrictions were no longer required, they were not entitled to wage loss benefits beyond November 1, 2013.
On July 17, 2020, an employer's representative contacted the WCB. The representative noted that their review of the claim file indicated the worker likely had a pre-existing condition which resulted in a prolonged period of recovery time from the worker's injury, and requested cost relief in favour of the employer for the costs associated with the claim. The WCB referred the file to the WCB medical advisor for review, and on November 10, 2020, the medical advisor opined that the findings on the April 23, 2013 CT scan "…while likely representing a degree of pre-existing degenerative change, were not of a severity likely to contribute to a significant degree of delay in recovery from the compensable injury." The WCB medical advisor further noted that while the worker had prior WCB claims in regard to back injuries, none of them appeared to have been significant injuries, the worker appeared to recover from all of them, and they would not represent significant pre-existing back conditions. On the same date, Compensation Services advised the employer's representative that the employer was not entitled to cost relief.
On December 16, 2020, the employer's representative requested that Review Office reconsider Compensation Services' decision. The representative noted the minor nature of the worker's mechanism of injury, the prolonged recovery time and their belief that the worker had pre-existing conditions which caused the claim, or significantly prolonged its duration, and submitted that the employer was entitled to cost relief of 100%, or at least 50%, of the costs associated with the claim. On February 4, 2021, Review Office advised the employer that there was no entitlement to cost relief for a pre-existing condition. Review Office accepted the WCB medical advisor's opinion that the findings on the CT scan were a pre-existing condition but that the pre-existing condition was not the primary cause of the workplace accident. Review Office found that the mechanism of injury, a heavy lift, caused a muscular back strain, and that the criteria for 100% cost relief was therefore not met. Review Office therefore found that the worker's pre-existing condition did not significantly prolong the claim, and there was no entitlement to cost relief.
On February 25, 2021, the employer's representative appealed the Review Office decision to the Appeal Commission and a file review was arranged. On August 13, 2021, pursuant to Decision No. 102/21, the Appeal Commission was unable to determine the worker’s claim was significantly prolonged by a pre-existing back condition and found the employer was not entitled to cost relief. The Appeal Commission noted the employer's advocate had advanced a number of other grounds for cost relief, including whether the worker suffered a further subsequent injury as a result of lifting a heavy object on May 5, 2013. The Appeal Commission determined it had no jurisdiction to address this issue as it had not been considered by the WCB.
The employer’s representative, on August 18, 2021, requested Review Office consider whether a further separate injury subsequent to the March 12, 2013 injury occurred on May 5, 2013 when the worker lifted a heavy item at work. On August 19, 2021, Review Office returned the worker’s file to the WCB’s Compensation Services to further investigate the issues raised by the employer’s representative.
The WCB advised the employer’s representative on September 2, 2021, a second claim for the May 5, 2013 injury had been opened for the worker and as such, that injury was not considered a further subsequent injury to the original March 12, 2013 compensable injury. The WCB noted a review by a WCB medical advisor found the two specific incidents occurred approximately two months apart; however, the worker “…appeared to be on a trajectory of substantial recovery at the time of the May 5 13 incident.” It was further noted there was no evidence to support the worker’s May 5, 2013 injury was caused or predominantly attributable to the March 12, 2013 injury as a result of the workplace accident.
On September 10, 2021, the employer’s representative again requested reconsideration of the WCB’s decision to deny the employer cost relief associated with a further separate injury that occurred on May 5, 2013 to Review Office. The representative submitted that had the worker not had restrictions placed on them due to the March 12, 2013 compensable injury and had they not been working outside of those restrictions, the injury on May 5, 2013 would not have occurred.
Review Office found, on September 23, 2021, the worker did not have a further injury subsequent to the original compensable injury. Review Office noted there were specific criteria within the WCB’s policies to determine whether the injury was a subsequent injury, which criteria were not met by the circumstances of the worker’s May 5, 2013 workplace accident and injury. The WCB established a new claim for the May 5, 2013 incident.
The employer’s representative filed an appeal with the Appeal Commission on October 12, 2021. A videoconference hearing was arranged for March 1, 2022.
Following the hearing, the appeal panel requested confirmation from the employer's representative of the issue to be addressed prior to discussing the case further. The requested confirmation was later received. On April 6, 2022, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
Applicable Legislation and Policy
The Appeal Commission is bound by The Workers Compensation Act (the Act), regulations and the policies of the WCB’s Board of Directors.
WCB Policy 31.05.10, Cost Relief/Cost Transfer – Class E (the "Cost Relief Policy") is applicable. The appeal panel relies upon the version of the Cost Relief Policy in effect on the date of the hearing. The Cost Relief Policy outlines circumstances in which claim costs may be removed from the cost experience of a Class E accident employer and assigned to a collective cost pool. This process is called "cost relief."
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:
The injury or illness is compensable under policy 22.214.171.124, Further Separate Injuries Subsequent to a Compensable Injury. See Schedule C – Further Separate Injuries Subsequent to a Compensable Injury.
Schedule C to the Cost Relief Policy states, in part, as follows:
Cost Relief may be provided to the Accident Employer if an injury is compensable as a "secondary injury" under policy 126.96.36.199…
WCB Policy 188.8.131.52, Further Injuries Subsequent to a Compensable Injury ("the Further Injuries Policy"), which was the policy in place at the time of the compensable injury, applies to a separate injury which 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 establishes the principles where a further injury is 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 Further Injuries Policy 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 worker did not participate.
The employer was represented by an advocate who participated via videoconference. The basis for the appeal is focused on the May 5, 2013 incident. The employer's representative submits this incident should be considered a further injury subsequent to the worker’s original compensable injury, which occurred on March 12, 2013.
The employer’s representative submitted that while the worker was still on modified duties, they suffered a separate injury on May 5, 2013 after lifting a heavy object while working. The worker was still recovering from the original compensable injury, which was a back sprain, when they lifted an object outside the prescribed limitations of the modified duties.
The employer's representative submitted that the medical reports indicated the worker had been progressing well in their recovery up until then, and that the May 5, 2013 incident constituted a further separate injury subsequent to a compensable injury, and not a recurrence. The employer's representative also disagrees with the WCB's decision to create a new claim for the May 5, 2013 incident.
As such, the employer’s representative requested that all costs associated with the further separate injury on May 5, 2013, be removed from the employer's account per Schedule C of the Cost Relief Policy.
The issue on appeal is whether or not the worker had a further injury subsequent to the March 12, 2013 compensable injury. Specifically, the employer's representative asks that the May 5, 2013 incident be accepted as a further separate injury that entitles the employer to cost relief. Based on the information presented and contained in the claim file, the panel was unable to make the determination that a further separate injury occurred on May 5, 2013 that was causally related to the compensable injury that occurred on March 12, 2013 that would entitle the employer to cost relief.
In making this determination, the panel notes that the March 12, 2013 injury occurred while the worker was lifting and loading a heavy object while standing on a ladder. The injury that occurred on May 5, 2013 occurred when the worker was lifting a heavy object. The panel finds that these are two distinct events and that the mechanism of injury involved in the May 5, 2013 event would have, on the balance of probabilities, resulted in a workplace injury regardless of the worker incurring an injury on March 12, 2013.
The employer’s representative submitted to the panel that there was a causal relationship between the two workplace injuries, given that they occurred in the same area of the worker’s body. However, the panel notes that the two injuries occurred approximately 7 weeks apart and that the medical reporting prior to May 5, 2013 did not demonstrate any issues or concerns regarding the worker’s recovery. For example, the last medical report prior to the May 5, 2013 injury was on April 15, 2013, which was approximately three weeks prior to the May 5, 2013 injury, stated “…normal range of motion, no tenderness on lumbar spine, can walk on heels and toes and normal motor/slash sensory exam”. The panel notes this is in contrast to the medical reporting on May 8, 2013, after the worker's May 5, 2013 injury where they stated to their physician "He hurted (sic) himself again on May 5th, 2013 after lifting heavy object." While the panel recognizes that the worker was participating in modified duties when they were injured on May 5, 2013, in the panel’s view, that does not, in itself, mean that any further injuries occurring during a period of modified duties are related to the original compensable injury.
Based on the information available, the panel finds that the circumstances around the May 5, 2013 incident did not meet the criteria of a further injury as considered under the Further Injuries Policy.
The appeal is therefore denied.
B. Hartley, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
B. Hartley - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 6th day of May, 2022