Decision #27/23 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to cost relief for a pre-existing condition. A file review was held on February 9, 2023 to consider the employer's appeal.
Whether or not the firm is entitled to cost relief for a pre-existing condition.
The firm is not entitled to cost relief for a pre-existing condition.
The WCB accepted the worker’s claim for injury to their right groin that occurred at work on December 3, 2019 when they attempted to connect a hose, twisted and felt a sharp pain in their right groin area. The worker continued working their regular duties with constant soreness in their right side testicle area and moving more slowly while performing those duties. When the worker sought medical treatment on December 16, 2019, they were referred to a surgeon to rule out a right inguinal hernia and sciatica, and to physiotherapy. The worker was assessed by a surgeon on December 20, 2019, reporting pain in their right groin, and the surgeon noted no hernia was felt but referred the worker for ultrasound and recommended restrictions of no lifting and sedentary job duties.
A WCB medical advisor reviewed the worker’s file on February 19, 2020 and provided an opinion that while the mechanism of the December 3, 2019 workplace accident involved forces that could have caused an injury to the soft tissues of the worker’s right inguinal region, a recurrent hernia or change to the worker’s previous right inguinal hernia repair from 2014 was not supported by clinical findings or the diagnostic imaging. In an addendum to that opinion on February 24, 2020, the WCB medical advisor concluded the diagnoses of pancreatitis and diverticulitis offered by the worker’s treating healthcare providers were incidental and not medically accounted for in relation to the worker’s right groin difficulties.
On February 26, 2020, the worker underwent an ultrasound study and on March 12, 2020, a bone scan. Both studies were reviewed by the WCB medical advisor on March 18, 2020, who opined the worker’s current diagnosis was right groin pain and recommended restrictions of avoiding repetitive forceful twisting and repetitive forceful movement of the worker’s right groin. In a March 19, 2020 virtual appointment, the treating surgeon who performed the previous hernia repair advised the worker that they may require a further surgery to remove the mesh used in the repair surgery and referred the worker to a physiatrist for assessment. On assessment of the worker on June 23, 2020, the physiatrist opined the worker had right genitofemoral neuropathy which “…tend to be seen directly related to the hernia repair however there may have been movement of the mesh or the focal fibrosis that may have put pressure on the nerve and is causing the symptoms currently.” The physiatrist trialed a genitofemoral nerve block and trigger point injections.
On November 10, 2020, the worker was assessed by a second surgeon who opined the worker had “…nerve entrapment secondary to the mesh” from their previous hernia repair surgery and recommended partial excision of the mesh, along with neurolysis of the inguinal nerves. The WCB provided surgical approval on November 27, 2020 and the surgery took place on December 1, 2020.
A WCB medical advisor reviewed the surgery report and on January 8, 2021 confirmed that a period of 2 to 3 weeks of home convalescence would be reasonable after such surgery, with a return to duties with restrictions of avoidance of lifting objects greater than 10-25lbs, or equivalent activities such as pulling and pushing of similarly weighted objects and the avoidance of forceful twisting and bending at the waist. At follow-up with the surgeon on January 18, 2021, the worker reported their chronic pain was gone and that they believed they could return to work, starting with modified duties and then full regular duties within a month. The worker returned to work on January 25, 2021 on modified duties and to full duties on February 1, 2021.
On February 17, 2021, the WCB advised the employer they were not entitled to cost relief as the evidence did not support a determination that the worker had a pre-existing condition that significantly prolonged the claim. On August 9, 2021, the employer’s representative requested reconsideration of the WCB’s decision on cost relief, providing a medical opinion from a third party physician with their submission. As this request included new medical information, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation.
A WCB medical advisor reviewed the medical information and the worker’s file on August 19, 2021 and concluded that the December 3, 2019 workplace accident “…may have involved forces to have been associated with compression of a right inguinal nerve by structures from a prior right inguinal hernia repair…”, noting it was a WCB adjudicative decision on whether that meant the worker had a pre-existing condition. Further, the medical advisor noted the December 1, 2020 surgical procedure involved denervation of sensory nerves from the worker’s right groin and would have resulted in a loss of all sensation, including pain, from any pain generator in the right groin area and a specific pain generator could not be established. On August 24, 2021, the WCB advised the employer that the new information was reviewed and there would be no change to the earlier decision they were not entitled to cost relief as a pre-existing condition for the worker was not established.
The employer’s representative resubmitted the August 9, 2021 submission to Review Office on September 8, 2021, noting the medical evidence on file supported the worker had a pre-existing hernia repair condition and that as a result, the claim was prolonged by that condition, thus entitling the employer to cost relief. Review Office determined on September 23, 2021 that the employer was not entitled to cost relief for a pre-existing condition. Review Office found the WCB had accepted responsibility for the worker’s surgery, along with the associated costs, and as such, concluded that the worker’s prior hernia repair had been compromised as a result of the December 3, 2019 workplace accident. Review Office did not grant cost relief as the claim duration was related to the workplace accident and compensable injury, including the medical investigations, surgery and recovery time from same.
The employer’s representative filed an appeal with the Appeal Commission on October 31, 2022 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. The provisions of the Act in effect as of the date of the worker’s accident are applicable.
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…
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. The Cost Relief Policy in place at the time of the initial cost relief decision by the WCB in February 2021 is applicable. Cost relief 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 220.127.116.11, 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.
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.
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.
The WCB Policy 18.104.22.168, Pre-existing Conditions (the “Pre-existing Conditions 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” and the WCB is only responsible for personal injuries that occur as a result of an accident arising out of and in the course of employment. When a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury. 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.”
The employer was represented in the appeal by an advocate who provided a written submission on behalf of the employer. The employer also relied upon opinions provided by a third party physician and an online article titled “Hernia Mesh Pain - Causes, Symptoms and Treatment Options”, included with the written submission.
The employer’s position, as outlined in their advocate’s submissions, is that the employer is entitled to cost relief as the evidence supports a finding that there is a direct causal nexus between the worker’s pre-existing hernia condition, the need for surgery and the duration of the worker’s recovery. The pre-existing condition not only generated a need for treatment modalities that would not otherwise be necessitated given the mechanism of injury but was a likely primary contributing factor to the onset of the worker’s symptoms, which may have even predated the alleged work accident.
In their submission, the employer’s advocate outlined the medical evidence in support of their appeal, noting that not only were there extensive delays in reporting the injury and seeking medical attention following the “alleged” work accident, but also inconsistencies and uncertainty surrounding the true nature of the worker’s condition. As such, it is the employer’s position that there is no proof of a work-related injury. The advocate noted the worker did not seek medical attention until nearly two weeks following the incident and that in speaking to the WCB shortly thereafter, the WCB adjudicator failed to inquire whether the worker had discomfort in their groin area prior to the events of the date of accident.
The employer’s advocate further noted that the medical investigations indicated no evidence of a recurrent hernia, which was confirmed by a CT scan on December 20, 2019. The CT scan of January 10, 2020 confirmed no evidence of acute pancreatitis, bowel obstruction or an inguinal hernia. The advocate noted that the January 2020 CT scan referenced a previous scan of June 10, 2020 and, commenting that this was likely in error and should have read June 10, 2019, suggested this indicated that the worker had similar groin symptoms predating the workplace accident. The employer’s advocate also noted that the worker initially attributed their symptoms to diverticulitis rather than to a workplace accident.
The employer’s advocate noted that as early as January 20, 2020, there is evidence of suspicion that the hernia mesh used in the worker’s 2014 hernia repair surgery may have moved, causing the worker’s symptoms. The advocate challenged the February 19, 2020 opinion of the WCB medical advisor that the mechanism of injury likely involved forces applied to the worker’s lower torso/groin structure causing an injury to those structures, noting that there was no confirmed diagnosis at that time and no evidence of an objective pain generator. The advocate further noted that the February 11, 2020 CT scan indicated no acute abnormality to account for the worker’s symptoms and on February 26, 2020, the WCB medical advisor confirmed that despite the investigations to that point, there was no confirmed diagnosis to account for the worker’s right groin pain. Following additional investigations including a February 26, 2020 sonogram and March 12, 2020 bone scan, the WCB medical advisor provided a further opinion that there was no evidence of recurring hernia and that a pathoanatomical explanation for the worker’s right groin pain was not apparent.
The employer’s advocate outlined the further medical reporting including the assessment on March 19, 2020 by the surgeon who performed the initial hernia repair surgery, investigation for gastrointestinal symptoms and a June 23, 2020 report from a physiatrist. The advocate noted that the physiatrist described a different mechanism of injury on a date approximately one month prior to the accident date and proposed that the worker might be experiencing right genitofemoral neuropathy related to possible movement of the mesh or fibrosis apply pressure on the nerve. The advocate submitted that these explanations are not compatible with the alleged workplace accident and were likely to have manifested even in the absence of any work activity. A surgical assessment of November 10, 2020 determined that the worker likely had nerve entrapment secondary to the mesh and a surgical procedure was proposed to address that issue. The WCB medical advisor’s November 27, 2020 opinion supported that the proposed surgery was likely to address the worker’s longstanding right groin pain and the WCB approved that procedure. The advocate disputed that there was any causal connection between the alleged accident and the proposed surgical procedure, noting that the post-operative diagnosis of “chronic pain post mesh inguinal hernia repair” also does not suggest any such causal relationship.
The employer’s advocate noted that the WCB medical advisor stated the accepted diagnosis was longstanding groin pain, which is more a description of the worker’s symptoms than a medical diagnosis. Further, the advocate noted that in the February 3, 2021 review, the WCB medical advisor concluded that there were several conditions that may have pre-existed the workplace accident and that while it was possible that the workplace activity of December 3, 2019 may have involved forces associated with compression of the right inguinal nerve, this was not supported by the imaging and that if it was determined (in adjudication) that the pathology was primarily due to nerve compression, then the prior hernia repair may have contributed to the development of the worker’s right groin pain. The advocate noted that the further opinion of the WCB medical advisor of August 18, 2021 was confusing in that the medical advisor noted that an injury to a specific anatomical structure was not objectively established, that a specific pain generator was not objectively established and that the possible link between the workplace activity involving forces associated with compression of the right inguinal nerve was also a matter of speculation not supported by imaging.
The employer’s advocate further noted the absence of any WCB-confirmed diagnosis, other than right groin pain, resulting directly from the worker’s job duties on December 3, 2019 despite the treating surgeon’s view that the worker’s symptoms were likely due to nerve pain resulting from contact with the inguinal mesh placed in the 2014 hernia repair surgery. The advocate pointed to conflicting views within the WCB as to the impact of the worker’s pre-existing condition, in that the physiotherapy consultant concluded that there was a major pre-existing condition for purposes of determining a permanent partial impairment, but the WCB did not find that this condition prolonged the worker’s recovery from the approved surgery.
The employer’s advocate also relied upon the opinions provided by a consulting physician, dated January 18, 2023 and July 19, 2021. In the January 18, 2023 opinion, the physician reviewed the medical reporting in relation to the worker’s injury and stated that “The injury mechanism did not involve very extensive forces applied through the groin…. Were it not for the previous inguinal hernia repair, I would expect that at most [they] would have suffered a very minor strain to the groin that should have settled within one or two weeks.” In the July 19, 2021 opinion, the physician summarized that “…the previous hernia repair with placement of mesh was contributing to the ongoing pain and that there is no objective imaging evidence to support nerve compression. The worker has had ongoing pain for well over one year from the date of injury. The prolonged recovery can’t be attributed to a simple strain mechanism and is due to the presence of the mesh from [their] previous hernia repair.”
The employer’s position, in sum, is that the only condition contributing to the worker’s symptoms throughout the claim arose out of the pre-existing hernia condition and surgical repair rather than from any work-related cause, and that this pre-existing condition was primarily responsible for the manifestation of the worker’s symptoms and to their continuing symptoms and prolonged recovery. As such, the employer should be entitled to either 100% or 50% cost relief in respect of the claim.
The worker did not participate in the appeal.
This appeal is in relation to the WCB’s determination that the employer is not entitled to cost relief for a pre-existing condition in respect of the worker’s claim arising out of the accident of December 3, 2019. For the employer’s appeal to succeed, the panel would have to determine that the worker’s claim is either primarily caused by a pre-existing condition or was significantly prolonged by the pre-existing condition. As outlined in the reasons that follow, the panel was unable to make such findings and therefore the employer’s appeal is denied.
The WCB accepted the worker’s claim for injury to their groin resulting from a workplace accident on December 3, 2019. The reported mechanism of injury involved the worker attempting to twist a 4-inch hose so that they could connect it. In the process, the worker held the hose between their legs and used their body to try and twist it. As they did so, they felt a sharp pain in their right groin, which did not resolve but worsened progressively over the subsequent days. The worker described the pain as similar to the pain experienced when they had a prior hernia. The employer’s submission outlines their belief that the worker did not cause injury to their groin on December 3, 2019 but had a pre-existing condition related to the 2014 surgical repair of their inguinal hernia and that this condition had flared up resulting in the worker’s symptoms. The employer’s submissions further suggest that the surgical procedure approved by the WCB on November 27, 2020 did not relate to any workplace accident or injury but was primarily related to the 2014 mesh repair. While the panel noted that the employer’s position that the evidence does not indicate that the worker had a workplace accident resulting in an injury, and that the surgery approved by the WCB on November 27, 2020 did not relate to an injury sustained in a workplace accident, but to the worker’s pre-existing condition, these are not the questions before the panel in this appeal. The panel noted that the employer has not appealed the WCB’s determination that the worker was injured as a result of an accident arising out of and in the course of employment, nor the determination that the surgical procedure of December 1, 2020 related to that accident. Our deliberations are limited to the question of the employer’s entitlement to cost relief.
The employer noted that there has been a recent change to the provisions of the WCB’s Pre-existing Conditions Policy and argued that the panel should apply the policy in effect prior to January 1, 2023. We agree. The Policy in effect from 2018-2022 is applicable to this appeal as the appeal relates to a decision of the WCB during that period and the new policy applies only to decisions on or after January 1, 2023.
The Pre-existing Conditions Policy sets out that an employer may be entitled to 100% cost relief if it is determined that the primary cause of injury was the pre-existing condition and 50% cost relief where it is determined that the pre-existing condition significantly prolonged the claim. The employer’s position is that it should be entitled to 100% cost relief in relation to the worker’s pre-existing condition, which the employer submits was the primary cause of the claim, or in the alternative, to 50% cost relief as the pre-existing condition significantly prolonged the claim.
The panel considered whether the evidence supports a finding that the worker had a pre-existing condition that was the primary cause of the claim. The Pre-existing Conditions Policy defines a pre-existing condition as “a medical condition that existed prior to the compensable injury.” The evidence in this case confirms that the worker, in May 2014, underwent a surgical procedure to repair a right inguinal hernia, and that a mesh repair was used in the course of that procedure. The early medical investigations following the workplace accident focused on determining whether the worker had suffered a recurrence of that hernia, as the worker was reporting pain in that region; however, the clinical and diagnostic findings did not support that there was any recurrence of that medical condition. The employer submits that the mesh used to repair the worker’s prior inguinal hernia is itself the cause of the worker’s reported symptoms in December 2019, pointing to the submitted article titled Hernia Mesh Pain which sets out that pain is “one of the most common complications after hernia repair surgery with mesh – a medical device made of polypropylene plastic that supports weakened or damaged tissue” and that such pain is often an inflammatory reaction to the mesh and nerve entrapment. The employer’s position is that the worker’s pain was a complication of the 2014 surgery and was not related to any workplace event or job-related injury. In other words, the employer submits that the worker’s previous surgery and the placement of that mesh was the primary cause of the worker’s onset of symptoms in December 2019, or earlier.
The panel noted the lack of evidence to support the employer’s suspicion that the worker was experiencing right inguinal groin pain prior to December 3, 2019. There is no medical reporting that supports this position, and although the worker’s prior hernia condition could have recurred or the repair could have failed, there is no evidence that it did. Rather, as noted in the November 10, 2020 report from the treating surgeon to the WCB, after the 2014 right inguinal hernia repair, the worker initially did “overall quite well from this, but over the last year, [the worker] has developed severe abdominal pain following what it appears to be an injury at work. [The worker] has been worked up quite extensively by this, and this was found to be consistent with the genitofemoral nerve entrapment, likely related to the prior mesh repair.” The treating surgeon’s comments support the WCB’s determination that the worker’s symptoms developed following and as a result of an accident at work, which caused injury that may have impacted upon the genitofemoral nerve entrapment, as diagnosed in 2020, and which the treating surgeon believes is likely related to the prior repair.
The panel acknowledges the WCB acceptance of the worker’s claim that they sustained injury to their groin on December 3, 2019 while in the course of their job duties. This is the very basis of the WCB’s acceptance of the worker’s claim. We are further satisfied that this workplace event was the primary cause of the onset of the worker’s symptoms on December 3, 2019 which resulted in the worker’s claim. In other words, but for the workplace accident of December 3, 2019, there would be no acceptable claim here. The panel noted that even the consulting physician, in their January 18, 2023 report to the employer concluded that an injury occurred on December 3, 2019, stating: “The injury mechanism did not involve very extensive forces applied through the groin while holding the tube. Were it not for the previous inguinal hernia repair, I would expect that at most [the worker] would have suffered a very minor strain to the groin….” The panel is therefore satisfied that this claim is not caused primarily by the pre-existing condition, but by the right groin injury sustained on December 3, 2019, in the context of the worker’s pre-existing, prior right inguinal hernia which was repaired some 5 years earlier.
The Pre-existing Conditions Policy sets out that when a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury. In other words, the pre-existing condition does not negate the possibility of a compensable injury in the same physical structures. The stated purpose of this policy is to ensure that compensation is not paid when an injury arises solely from the effects of a worker's pre-existing condition, but that is not the case here, where the evidence supports a finding that the worker sustained another injury in the same body region as their pre-existing, repaired right inguinal hernia.
The WCB medical advisor, in their November 27, 2020 opinion, accepted the treating surgeon’s opinion that entrapment of nerves by the previously placed mesh from the worker’s prior hernia repair “may be related to [the worker’s] right groin pain that has been consistent since a December 3, 2019 workplace activity” and as such agreed that the proposed surgical procedure was a “reasonable treatment plan for the accepted diagnosis of longstanding right groin pain, particularly if there is evidence that neurologic disruption in the course of the proposed procedure, would be of benefit.” As reported by the treating surgeon on October 29, 2021, the worker “has not had any recurrence of the pain [they] had been experiencing prior to our neurectomy” suggesting that the procedure was indeed successful in dealing with the worker’s post-accident right groin pain. There is no indication in the evidence that there was any significant delay in the worker’s recovery from the December 1, 2020 surgical procedure and the panel noted that the worker was authorized to return to modified work early in 2021 and returned to full duties on February 1, 2021.
In this case, the medical reporting does indicate that there was a lengthy and comprehensive investigation of the cause of the worker’s symptoms that arose after the workplace accident. As noted above, various and multiple diagnoses were proposed, investigated and ruled out before it was determined in late 2020 that the worker’s ongoing symptoms following the workplace accident related to nerve irritation or entrapment in relation to the mesh placed in the 2014 hernia repair as detailed above. The medical reporting indicates that once the likely cause of the worker’s symptoms was ultimately determined late in 2020, the proposed surgical repair procedure took place soon thereafter and the worker made a smooth and timely recovery. The panel is therefore satisfied that it was the ongoing and lengthy investigation of the worker’s persistent symptoms that prolonged the claim, rather than the pre-existing condition itself. The panel agrees with the employer’s consulting physician that the worker’s continuous pain for well over one year from the date of injury cannot “be attributed to a simple strain mechanism” but finds that the worker’s continuous symptomatic presentation can be attributed to the ongoing medical investigations of the worker’s consistent and lingering symptoms. We are satisfied that the claim was not therefore significantly prolonged by the worker’s pre-existing condition.
On the basis of the totality of the evidence and on the standard of a balance of probabilities, the panel is satisfied that the primary cause of the worker’s injury was not their pre-existing condition and that the pre-existing condition did not significantly prolong the worker’s claim. Therefore, the firm is not entitled to cost relief for a pre-existing condition. The appeal is denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of March, 2023