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 cost relief due to a pre-existing condition. A file review was held on April 23, 2024 to consider the employer's appeal.

Issue

Whether or not the firm is entitled to cost relief due to a pre-existing condition.

Decision

The firm is not entitled to cost relief due to a pre-existing condition.

Background

The worker has an accepted WCB claim for a left tibial plateau fracture after they tripped over a piece of machinery, fell and struck their left knee hard onto the ground at work on November 21, 2019. The worker was transported to the local hospital and underwent an open reduction and internal fixation on November 30, 2019. The worker remained in the hospital until December 19, 2019 when they were discharged.

On January 9, 2020, the WCB met with the worker at home to discuss their claim. The worker confirmed the mechanism of injury and advised the WCB their next appointment with the orthopedic surgeon was on March 19, 2020. They provided details of their job duties and it was noted the worker would have difficulties attempting a return to work at this time as they were using a wheelchair and a walker. The worker's file was reviewed by a WCB medical advisor on February 5, 2020. The advisor opined the worker sustained a tibial plateau fracture as a result of the November 21, 2019 workplace accident and indicated the open reduction and internal fixation surgery was appropriate to treat that injury. Further, the advisor provided “This type of fracture affects the architecture of the knee joint and many will end up with a degree of ongoing pain and stiffness. The degree to which this might affect function will only be seen with time.” It was further opined the type of injury sustained by the worker normally heals in two to three months but the worker’s functional recovery in terms of mobility, range of motion and strength was unpredictable. It was recommended the worker remain off work to ensure there were no complications and to give the worker time to heal.

In speaking with the WCB on March 30, 2020, the worker advised due to the COVID-19 pandemic, their appointment with the orthopedic surgeon had been rescheduled to April 30, 2020. The worker advised their knee felt good, they had no swelling and felt they could do more weight-bearing but wanted confirmation from the treating surgeon before attempting. The worker noted they had not been cleared to do stairs and they still required assistance with some activities of daily living. The worker attended for a follow-up appointment on April 30, 2020 with their orthopedic surgeon. It was noted by the surgeon that due to the COVID-19 pandemic, the worker had not been seen for follow-up, was continuing to use a walker and had “…only intermittently been doing knee range of motion exercise.” The surgeon recommended the worker immediately discontinue use of the walker and noted the worker was fit to return to their regular duties. Due to their concerns with returning to work, the worker attended a walk-in clinic on May 3, 2020 and was seen by a sports medicine physician. The physician examined the worker and noted the worker was deconditioned since the surgery and had not attended for physiotherapy treatment due to the COVID-19 pandemic. It was recommended the worker could return to work on sedentary duties but also recommended that the worker be seen by a family physician before starting a physiotherapy program due to other health issues.

The worker attended for an appointment with their family physician on May 19, 2020. The treating physician noted the worker’s reporting of ongoing pain and difficulty walking on their left knee and difficulty bending and extending their knee. The physician noted the worker’s weight and poor flexibility in their knee was causing antalgic gait and found the worker was walking cautiously because of this. It was recommended the worker attend physiotherapy two to three times a month and counselling on weight management and exercise were provided. Restrictions of sedentary jobs that involved limited movement was recommended, along with a gradual return to work. The worker started a graduated return to work plan on June 8, 2020 and returned to their full regular duties on June 29, 2020.

On April 11, 2023, the employer’s representative contacted the WCB to request consideration be given to cost relief for the employer as it was suspected the worker had a pre-existing condition that “…contributed to the severity of the work-related injury or significantly prolonged recovery…”. The WCB case manager reviewed the worker’s file and on April 20, 2023, advised the employer they were not entitled to cost relief due to a pre-existing medical condition.

The worker’s representative requested reconsideration of the WCB’s decision on cost relief to Review Office on May 24, 2023. The representative noted an expected return to work after the type of injury the worker sustained was three to four months, but the worker did not return until approximately seven months’ following their surgery. The representative indicated the medical information on the worker’s file listed other pre-existing medical conditions they believed may have prolonged the worker’s recovery. On June 1, 2023, Review Office determined there was no entitlement to cost relief due to a pre-existing condition. Review Office agreed with and accepted the review conducted by the WCB case manager and found the recovery was delayed due to the worker not being assessed by the treating orthopedic surgeon until five months after the surgery which led to the worker becoming deconditioned and resulted in a delay in the worker returning to work.

The employer’s representative filed an appeal with the Appeal Commission on March 1, 2024 and a file review was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (“Act”), regulations under the Act and the policies established by the WCB's Board of Directors.

Section 4(1) of the Act provides compensation for injured workers when it is established that they sustained personal injury as a result of an accident at work. The compensation amounts are paid from an accident fund. Section 81(1) provides that employers are to be assessed an annual levy, for the maintenance of the accident fund.

The issue on appeal relates to the employer’s request for cost relief. Section 81(1) of the Act 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 established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy") to address eligibility for compensation where a worker has a pre-existing condition. The Pre-existing Policy defines a pre-existing condition as any medical condition the worker had prior to their workplace injury.

The WCB established WCB Policy 31.05.10, Cost Relief/Cost Transfer – Class E Employers (“Cost Relief Policy”) to address situations where the employer seeks a removal of the claim costs that they may be liable for situations where, amongst other factors, a ‘worker's pre-existing condition contributes to the severity of their work-related injury or significantly prolongs their recovery’.

Schedule A - Pre-Existing Conditions of the Cost Relief Policy states, in part:

The WCB will provide Cost Relief to Accident Employers when a worker's pre-existing condition contributes to the severity of their work-related injury or significantly prolongs their recovery.

Cost Relief

When a worker's pre-existing condition:

• contributes to the severity of their work-related injury; or 

• significantly prolongs their recovery, and the worker's time loss from work is greater than 12 weeks.

the WCB will provide the Accident Employer with Cost Relief in the amount of 50% of the claim costs, exclusive of the costs of any impairment award.

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 worker suffered from a pre-existing condition as the worker was obese. According to the employer’s representative, as a result of the pre-existing condition of being obese, the worker’s recovery was prolonged.

The employer’s representative relied on statements from the worker’s family physician that: 

“…obese body habitus worsened by immobility places additional strain on left knee and has made [worker's] recovery slow”.

The employer’s representative also relies on the notes from the WCB Case Manager from November 30, 2019 to February 3, 2020, where the following entries were found:

“Are there any other factors impacting the worker's functional abilities? Yes, HSC Physiotherapist says worker is ~ 300 lbs and BMI may be a factor.”

... 

“Are there any other factors impacting the worker's functional abilities? Yes, apparently weight is a factor.”

“... [worker] was in hospital for an extended period due to BMI and difficulty with ambulation ...”

The employer’s position, in sum, was that there was sufficient evidence the worker’s obesity contributed to the prolonged recovery from the worker’s November 21, 2019 injury.

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 November 21, 2019.

For the employer’s appeal to succeed, the panel would have to determine that the worker (i) had a pre-existing condition and (ii) that the worker’s recovery 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 Panel considered the employer’s submission and the evidence on file. The panel was unable to find any medical records that categorized the worker’s BMI or obesity as a pre-existing condition. The Panel has observed that the medical professionals that treated the worker have not specified any pre-existing conditions related to the injury.

The evidence on the file attributes any delay in recovery suffered by the worker to the effects of the COVID-19 pandemic on the healthcare system’s restricted ability to service medical appointments. The panel notes that the period of time of the beginning of the COVID-19 pandemic manifested itself in March 2020, causing significant aspects of the healthcare system’s services to be cancelled and rescheduled.

The worker’s medical records evidence that the worker did experience cancellations of their appointments, in particular:

- The worker underwent surgery on November 30, 2019 and was subsequently discharged from the hospital on December 19, 2019.

- The worker’s follow up appointment was set for March 2020, and was cancelled and rescheduled for April 30, 2020.

- On April 30, 2020, the worker's treating sports medicine physician indicated that the worker was ‘initially lost to follow-up’ as they were previously scheduled for a follow up appointment post-surgery, in March 2020.

- On May 3, 2020, the worker was able to see their sport medicine physician, who indicated the worker was “deconditioned” since surgery as they were unable to attend physiotherapy treatment "due to COVID".

- On June 8, 2020, the worker was able to obtain physiotherapy treatment with a gradual return to work program.

- On June 29, 2020, the worker was able to return to regular duties.

The Panel notes that had it not been for the delays brought about by the COVID-19 pandemic, the ordinary timeframe for recovery for this type of injury would have been 2 to 3 months. In total, the worker’s recovery period was six months spanning from December 19, 2019 to June 29, 2020.

If there was a significant or prolonged delay in recovery, the Panel is unable to attribute this to a pre-existing condition, as asserted by the employer’s representative.

The Progress Report of June 9, 2020 by the worker's treating family physician indicates that the worker’s recovery is satisfactory, and there is no mention of a pre-existing condition on the part of the worker that delayed recovery. The WCB’s Physiotherapy Consultant provided an opinion on February 3, 2021 and stated that the worker had “No major pre-existing condition related to the PPI.”

While the panel appreciates the arguments of the employer’s representative, the worker’s medical records do not support that the worker’s obesity significantly prolonged the worker’s recovery.

The panel notes that although the worker’s weight was indicated as a concern and may have limited the worker’s functional ability, the medical records on file do not support the position that the worker’s weight contributed to a significant or prolonged delay in recovery.

The panel agrees with the Review Office’s interpretation of the comments made by the worker’s physician when he stated that “[Worker's] obese body habitus worsened by immobility places additional strain on left knee and has made his recovery slow”. The Panel accepts that this supports the view that the worker gained additional weight while immobile, slowing recovery, not that the worker’s pre-existing weight issues delayed recovery.

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 did not have a pre-existing condition that would have entitled the employer to cost relief under the Cost Relief Policy.

The appeal is denied.

Panel Members

R. Mamucud, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Mamucud - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of June, 2024