WORKERS COMPENSATION APPEAL TRIBUNAL WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND DECISION #65. Employer Advisor for the Appellant

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1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: EMPLOYER CASE ID [personal information] APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #65 Keith Mullins Stephen Carpenter Employer Advisor for the Appellant Solicitor representing the Workers Compensation Board Place and Date of Hearing February 21, 2007 Best Western MacLauchlans Charlottetown, Prince Edward Island Date of Decision September 26, 2007

2 1. This is an Employer appeal of the Internal Reconsideration Decision, dated August 10, The Reconsideration issue was identified as follows: R1-01: Is the Employer entitled to cost relief effective [personal information], 2002, due to the worker having a pre existing condition? The Employer was partially successful and has further appealed to this Appeal Tribunal. 2. By way of background, the Worker was employed with [personal information] ( Employer ) at the time of his workplace injury on or about [personal information], The Worker s claim was accepted for benefits on [personal information], 2002, as a result of a low back strain injured on [personal information], Ongoing medical reports through 2003 indicated that the Worker continued to have significant back pain. The Worker received temporary wage loss benefits from [personal information] 2002 until [personal information] 2004 for back strain/sprain. The claim was then suspended in [personal information] 2004 for non-compliance with an Ease Back Program with the Employer in [personal information] This was then re-adjudicated with the Worker s benefits being reinstated from February 25, 2004, until July 14, In addition, the Worker was provided four additional weeks in lieu of the ease back program. 3. The Physician s Initial Report of Injury dated [personal information], 2002, does not indicate how the injury occurred but noted; Pain lower part of the back, the same as before. Unable to bend to even put his socks on. He has been off work since [personal information]/02 on holiday, was using hot pads etc, and has been no better. 1

3 4. The Employer s Report of Accident dated [personal information], 2002, noted, Lower back pain while employee on vacation, sought medical and Worker believes it is work related. Worker has had previous injuries to his back. A memo dated May 5, 2003, indicated that the Entitlement Team Leader from Client Services had spoken with the Employer who said he could not confirm the exact date of the Worker s accident but basically felt that the claim was legitimate as the Worker talked to him about back pain before. With this information it was decided not to terminate the claim. The Worker continued to seek medical advice and on [personal information], 2004, saw Dr. Alexander, an orthopedic specialist, who recommended that he have a Discogram at the L4-5 and L3-4 level to determine whether or not he had an internal disruption of a disc. His CT scan and x-rays were normal and the MRI showed some L4-5 abnormalities. 5. The Discogram was completed on [personal information], 2004, and indicated degenerative changes at the L3-4 level which was noted as being quite common for this age group. On [personal information], 2004, Dr. Abraham, an orthopedic specialist, stated the Worker s MRI showed a very degenerative L3-4 disc with an interior disc herniation, with the remaining discs appearing fine. Dr. Abraham discussed surgery with the Worker and advised that he had approximately a 60 to 70 percent chance of pain reduction with the surgery and noted that the Worker would be placed on an operation list for left side disc interior fusion L3-4 with Pyramesh and Antares. 6. This medical history eventually resulted in the Employer requesting cost relief on the basis of the compensation not being apportioned appropriately and the Worker s pre-existing condition and this claim was denied by the Manager of Case Management Services on May 24, The Employer by letter dated June 1, 2005, requested further review of the request for cost relief and ultimately a Notice of Request for Internal Reconsideration was received by the Board on June 28,

4 7. The issue in this matter is whether or not the temporary wage loss benefits that were paid to the Worker up to March 24, 2004, should have been charged to the pre-injury employer. The Internal Reconsideration Officer had found the evidence on file indicated the Worker medically plateaued until [personal information], 2004, at which time the disc herniation was confirmed through diagnostic measures. Therefore, for the period of March 25 to August 12, 2004, cost relief was awarded to the Employer pursuant to Policy (Pre-Existing Conditions). However, the Appellant remains of the view that it should have cost relief from [personal information], This leaves the time period from [personal information], 2002, until March 24, 2004, to be considered. 8. In its appeal the Employer s primary submissions is that the Internal Reconsideration Officer failed to interpret Policy (Pre-existing Conditions) and that cost relief should be provided based on the Policy definition of the normal period of recovery. It is the Board s position that there was no evidence to establish the normal period of recovery was extended due to the pre-existing condition as opposed to other things so the Internal Reconsideration Decision should stand. Analysis and Decision 9. The IRO referred to the two policies (04-44 and 04-09) when considering the request for cost relief in the decision but only specifically mentions in her Rational Analysis in awarding partial relief to the Employer. 10. Policy states: Where a worker has a pre-existing condition and the normal recovery is extended due to the pre-existing condition, the costs for compensation beyond the normal period of recovery for the work 3

5 injury will be apportioned to the rate group of the employer rather than to the employer. 11. Pre-existing condition is defined in Policy as:... any condition which, based on a confirmed diagnosis or medical judgment, existed prior to the current work-related injury. 12. Policy defines the normal recovery time as:... the time determined by medical guidelines approved by the Workers Compensation Board that indicates a normal amount of time required for workers with a particular type of personal injury to return to work after the injury. 13. The Board published Disability Duration Guidelines and Expected Healing Times (September 2003). These Guidelines indicate that the disability duration for soft tissue injuries involving the spine (lumbosacral) for medium; heavy; and very heavy job classifications is 0-4 weeks for a return to work. The Employer relies on four weeks in its submission and that the balance of the compensation paid out should be charged to its rate group. 14. The Board responded to the Appellant s submission by noting the disclaimer in the Publication which provides that the Guidelines are not intended to provide for strict rules for these conditions in all workers, and to note that there is a difference between disability duration and expected healing times, with disability duration being the time the worker can expect to return to work (based on 75% of workers) and expected healing time being the time for physiological wound repair following an injury. 4

6 15. The Act provides that this Appeal Tribunal is bound by the Policies. In considering the position of the parties, the difficulty arises when the definition references are not consistent throughout the Policies and supporting publications. For example, although normal recovery time is defined at the beginning of the policy, the reference in the body of the policy is to normal period of recovery. 16. That stated, this Tribunal considers the phrases to be equivalent in meaning. The key in this decision lies in the definition of normal recovery time and specifically its reference to return to work which correlates to the Disability Duration Guidelines versus the Expected Healing Times in the Board s publication. Further, although the Tribunal recognizes there are numerous factors which may contribute to a Worker s disability, the definition references normal, which we find the 0-4 weeks range represents. 17. On this basis, this Tribunal finds the IRO erred by not applying Policy correctly and that the Employer is entitled to cost relief from [personal information], Dated this 26 th day of September Pamela J. Williams Vice Chair of the Workers Compensation Appeal Tribunal Concurred: Gordon Huestis, Employee Representative Don Cudmore, Employer Representative 5