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 50% cost relief for a pre-existing condition. A file review was held on August 29, 2023 to consider the employer's appeal.

Issue

Whether or not the employer is entitled to 50% cost relief for a pre-existing condition.

Decision

The employer is not entitled to 50% cost relief for a pre-existing condition.

Background

This claim has been the subject of two previous appeals. Please see Appeal Commission Decision Nos. 61/22, dated April 28, 2022, and 40/23, dated February 16, 2023. The background will therefore not be repeated in its entirety.

The worker was involved in a motor vehicle accident on February 7, 2021, which resulted in the worker suffering a concussion, as diagnosed by her neuro-ophthalmologist on April 20, 2021. The worker reported the incident to the WCB on February 8, 2021 and the WCB accepted the claim.

The worker also has an accepted WCB claim for a whiplash/concussion-type injury that occurred as the result of a motor vehicle accident while at work on March 26, 2021. After the accident, the worker was taken to a local emergency department and diagnosed with a concussion. The worker was placed off work and was referred to a neurologist on an urgent basis due to experiencing side effects from their second concussion in just over a month. The worker attended various healthcare providers for treatment including physiotherapy and being examined by a neuro-ophthalmologist who diagnosed occipital neuralgia caused by concussion, concussion, and post-concussion syndrome and recommended consultation with a concussion specialist and vestibular physiotherapy.

A WCB medical advisor reviewed the worker's file and previous WCB claim file on April 26, 2021. The medical advisor opined the diagnosis related to the March 26, 2021 workplace accident was a whiplash injury, in the environment of pre-existing degenerative cervical spine changes, noted to be osteoarthritis, with possible vestibular dysfunction. The medical advisor stated although the treating healthcare providers diagnosed a concussion, specific criteria in accordance with WCB policies had not been met for that diagnosis. The WCB medical advisor went on to note that the "…natural history of a whiplash injury typically is for recovery over the course of 4-8 weeks with slightly longer durations known in the presence of pre-existing degenerative cervical spine conditions" with the natural history of vestibular dysfunction was for recovery over the course of several weeks to months with appropriate therapy. The medical advisor opined the worker's pre-existing degenerative cervical spine osteoarthritis was not structurally aggravated or enhanced by the March 26, 2021 workplace accident.

The employer was provided with the worker’s restrictions on April 30, 2021. On May 7, 2021, the employer advised they could accommodate the worker starting on May 10, 2021. On May 10, 2021, the WCB received correspondence from the treating family physician stating their disagreement with the WCB's decision the worker had not sustained a concussion and noted their concern with the worker returning to work due to their ongoing symptoms.

On May 11, 2021, the worker attended an initial vestibular physiotherapy session. The worker reported dizziness, nausea, imbalance, fatigue, headache, photo and photosensitivity and neck pain. Upon examination, the treating physiotherapist noted decreased range of motion in the worker's cervical spine but normal vestibular-ocular and benign paroxysmal positional vertigo tests and diagnosed post-concussion with an element of cervicogenic dizziness. Further physiotherapy treatment was recommended before the worker participated in a gradual return to work. On May 14, 2021, the employer again advised they could accommodate the worker starting on May 17, 2021. On the same date, the WCB contacted the employer for further clarification of the March 26, 2021 workplace accident. The employer advised the motor vehicle accident did not involve a collision, just an abrupt stop, and the other occupants of the vehicle did not suffer any injuries.

A WCB medical advisor reviewed the treating neuro-ophthalmologist's report of April 20, 2021, along with the worker's file, noting the treating neuro-ophthalmologist relied on a single metric as a clinical finding to support a diagnosis of concussion and requested additional information on the assessment of convergence with a WCB neuro-ophthalmology consultant. Further review by a WCB physical medical consultant was also requested. On May 26, 2021, the WCB neuro-ophthalmology consultant provided an opinion. The consultant noted the worker's treating neuro-ophthalmologist's report indicated the worker did not report double vision at both near and far distance and in all directions of gaze and opined the absence of double vision, along with the other reporting by the neuro-ophthalmologist, did not support a diagnosis of a concussion. The WCB advised the worker by way of a formal decision letter dated June 4, 2021 they were not entitled to benefits after May 16, 2021 as their employer had suitable modified duties within their restrictions available for them as of May 17, 2021.

The worker contacted Review Office to confirm they wished to proceed with the request they submitted on May 25, 2021 for reconsideration of the June 4, 2021 decision they were not entitled to further benefits. On July 22, 2021, a WCB physical medicine specialist reviewed the worker's file. The specialist provided a summary of the mechanism of injury as reported by the worker and their co-workers and of the worker's medical treatment, and agreed with the April 23, 2021 opinion of the WCB medical advisor that the worker sustained a "…minor cervical strain from a possible whiplash mechanism…" which was expected to have resolved in days to three to four weeks at most. The WCB physical medicine specialist further noted the medical evidence on file of "…some preexisting degenerative involvement of the cervical spine…" and no evidence of any acute injury related findings. The specialist opined the worker's current difficulties could not be medically accounted for in relation to the March 26, 2021 workplace accident, and further medical treatment and work restrictions were not required.

The worker's representative provided a written submission to Review Office on August 5, 2021. The representative submitted the worker's treating healthcare providers supported the diagnosis of concussion and time off work to receive further treatment, which the representative stated the worker's refusal to return to work on May 10, 2021 and again on May 17, 2021 was based on those recommendations. On August 17, 2021, Review Office upheld the WCB's decision. Review Office accepted and agreed with the opinions of the WCB medical advisors that the worker did not meet the WCB criteria for concussion from the March 26, 2021 workplace accident, and did not accept the recommendation of the worker's treating healthcare providers for the worker to remain off work. Review Office found the worker was capable of performing the accommodated duties offered by the employer as of May 17, 2021 and no longer had a loss of earning capacity after May 16, 2021. The worker's representative filed an appeal with the Appeal Commission on August 26, 2021 and a videoconference hearing was arranged. On June 7, 2022, pursuant to Appeal Commission Decision No. 61/22, the Appeal Commission determined the worker was entitled to benefits after May 16, 2021 and the worker's file was returned to the WCB for further adjudication.

On June 15, 2022, the WCB contacted the worker after reviewing Appeal Commission Decision No. 61/22. The WCB advised the worker that based on the WCB medical advisor's July 22, 2021 opinion, their ongoing difficulties could not be accounted for as related to the March 26, 2021 workplace accident, and the worker's entitlement to benefits would therefore be extended to July 29, 2021, which included 7 days' notice of change of benefits in accordance with the WCB policies. A formal letter setting out the WCB's decision was provided to the worker on June 17, 2022.

The employer's representative contacted the WCB on June 20, 2022 to request cost relief on the worker's claim. The representative queried whether the worker had a pre-existing or underlying condition which "…contributed to the severity of the injury and/or the recovery under this claim" and requested the WCB to review the employer's entitlement to cost relief. On June 22, 2022, the WCB advised the employer they were not entitled to cost relief. The WCB determined a relevant pre-existing condition which would have impacted the worker's claim had not been identified.

On June 30, 2022, the worker's representative requested that Review Office reconsider the WCB's decision to end the worker's entitlement to further benefits. On September 12, 2022, Review Office determined that the worker was not entitled to wage loss or medical aid benefits beyond July 29, 2021. Review Office noted the crux of the Appeal Commission decision dealt with the worker's entitlement to benefits being ended before an ongoing investigation was completed, and agreed with the WCB's decision to end entitlement to benefits on July 29, 2021, in keeping with the WCB's policies, as the final WCB medical opinion was placed to the worker's file on July 22, 2021. On September 16, 2022, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged. The Appeal Commission determined on April 17, 2023 pursuant to Decision No. 40/23 the worker was entitled to wage loss and medical aid benefits after July 29, 2021.

The employer's representative requested reconsideration of the WCB's June 22, 2022 decision the employer was not entitled to cost relief. The representative submitted the worker's injury and disability as a result of the March 26, 2021 workplace accident was enhanced as a result of a prior reported concussion/whiplash injury that occurred just weeks before the workplace accident. The representative further noted the worker's claim went beyond the 12 weeks required under the WCB's policy for cost relief to apply. On January 17, 2023, Review Office determined the employer was not entitled to 50% cost relief for a pre-existing condition. Review Office found the medical evidence did not support the worker's pre-existing condition impacted the worker's recovery. In addition, while the worker's claim went beyond the normal time frame for recovery, Review Office accepted the further investigation and WCB healthcare review of the worker's file extended the duration of the claim but were not part of the criteria to determine eligibility for cost relief.

The employer's representative filed an appeal with the Appeal Commission on April 20, 2023 and a file review was arranged.

Following the review, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On October 16, 2023, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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 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 in effect in 2021 provided 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 Employers (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 June 2022 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 44.10.80.40, Secondary Injury. See Schedule C - Secondary 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.

The WCB Policy 44.10.20.10, 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.”

Employer’s Position

The employer was represented in the appeal by an advocate who provided a written submission on behalf of the employer.

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 conditions of degenerative changes to the worker’s spine and the concussion suffered by the worker on February 7, 2021 and the duration of the worker’s recovery as well as the severity of the worker’s injuries.

In their submission, the employer’s advocate outlined the medical evidence in support of their appeal, noting that the worker’s diagnoses of concussion and whiplash were based on the background of a pre-existing condition. Specifically, the employer noted that the report of April 20, 2021 from the worker’s neuro-ophthalmologist referenced the worker’s first concussion of February 7, 2021. Further, the Concussion Clinic Report of June 8, 2021 noted that the worker’s first concussion was on February 7, 2021.

Additionally, the employer’s advocate outlined the further medical reporting including the WCB Healthcare Service Request of April 23, 2021 stated that the worker’s diagnosis can be accounted for on a background of pre-existing degenerative cervical spine change and noted that the pre-existing cervical spine osteoarthritis may delay her recovery somewhat. Further, the Concussion Clinic Report of July 22, 2021 indicated that the worker had a significant history of osteoarthritis, among several other conditions.

The employer noted that the worker’s initial symptomology began after the February 2021 motor vehicle accident. The employer also noted that the worker’s diagnosis was accepted on a background of pre-existing degenerative changes and a concussion. In its submissions, the employer suggested that but for the pre-existing degenerative changes and concussion the accepted entitlement may not have occurred or may not have been as severe.

The employer’s position, in sum, was that there was sufficient evidence of a pre-existing condition which contributed to the prolonged nature of the claim.

Worker’s Position

The worker did not participate in the appeal.

Analysis

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 March 26, 2021. 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, except if the pre-existing condition stems from a previous workplace accident, with the same accident employer. As outlined in the reasons that follow, the panel was unable to make such findings and therefore the employer’s appeal is denied.

The Panel considered the employer’s submission and the supporting evidence therein at length and determined that there was indeed sufficient evidence to establish a pre-existing condition of a concussion. The evidence on the file, however, did not clearly indicate that the pre-existing condition of degenerative changes was such that it was the primary cause of the worker’s injury, nor that it significantly prolonged the worker’s recovery. The Panel noted that the impact of the degenerative changes had not been addressed by the worker’s neuro-ophthalmologist.

Accordingly, the Panel wrote to the worker’s neuro-ophthalmologist noting the medical evidence demonstrated a pre-existing condition of degenerative changes and requesting their opinion regarding the impact of any pre-existing condition that may have existed prior to the date of injury. In response, the worker’s neuro-ophthalmologist indicated that the worker’s pre-existing conditions were the prior concussion and anxiety. The worker’s neuro-ophthalmologist made no comment regarding the worker’s degenerative changes as a primary cause of the injury or regarding the worker's recovery. Rather, the neuro-ophthalmologist indicated that a prior concussion prolongs the recovery of the worker’s injury.

In response to this additional report from the worker’s neuro-ophthalmologist, the employer submitted that the report confirms the worker’s pre-existing condition contributed to the severity of their work-related injury and significantly prolonged their recovery.

The attending physician’s subsequent report, indicates to the Panel that the only pre-existing condition which could be considered to require cost relief to the employer is that of the worker’s prior concussion from the motor vehicle accident on February 7, 2021. Because the worker’s prior concussion stems from a previous workplace accident with the same accident employer, the circumstances of this appeal fall under the exception set out in the Cost Relief Policy. Accordingly, the employer is not entitled to cost relief.

On the basis of the totality of the evidence and on the standard of a balance of probabilities, the panel is satisfied that the worker’s pre-existing condition which may have significantly prolonged the worker’s recovery was the worker’s prior concussion not the worker’s degenerative changes. Therefore, the employer is not entitled to cost relief under the Cost Relief Policy.

The appeal is denied.

Panel Members

N. Smith, Presiding Officer
J. Peterson, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

N. Smith - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of November, 2023