WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090017
OBJECTION BY: Employer
WORKER: Not Participating
REPRESENTATIVES: Employer
HEARING DATE: N/A
ISSUE
The employer objected to the decision of March 9, 2009, that denied entitlement to cost relief under the Second Injury and Enhancement Fund (SIEF).
HOW THE ISSUE ARISES
On September 6, 2007 this then 47 year old worker indicated that he sustained an injury to left knee as he twisted it when he slipped on the floor. He continued to work with slight discomfort following the work incident. He did not report the incident to his employer nor did he seek medical attention.
On November 16, 2007 the worker felt a popping sensation and an exacerbation of problems when he was kneeling to reset a machine. The worker reported the injury immediately and sought medical attention on November 19, 2007 at which time he was diagnosed with a possible left medial meniscus tear. Entitlement was accepted for the November 16, 2007 work injury.
The left knee surgery was performed on February 7, 2008 and loss of earnings (LOE) benefits was paid from February 7, 2008 up to but not including March 5, 2008 when he returned to modified duties. The worker returned to his regular job duties on March 12, 2008.
In March 2009, the adjudicator reviewed entitlement to cost relief under the SIEF. The adjudicator found that there was no evidence to support entitlement to cost relief and as such the request for SIEF cost relief was denied. This decision was communicated in writing on March 9, 2009.
An Objection Form was received by the Workplace Safety and Insurance Board (WSIB) indicating that the employer objected to the above decision, and the file was referred to the Appeals Branch for further review and consideration.
AUTHORITY
Operational Policy Document
14-05-03 Second Injury and Enhancement Fund
RESOLUTION METHOD AND PROCESS
The employer’s representative has opted for an expedited 60 day decision without a hearing, based on a review of the information on file. The worker was advised of the objection but chose not to participate.
ASSESSMENT OF THE EVIDENCE
Submission
On behalf of the employer, the employer representative argued that the worker’s weight and the pre-existing degenerative condition in his left knee contributed to the work accident and prolonged the period of recovery.
File Review and Analysis
SIEF cost relief is considered if a prior disability caused or contributed to a compensable accident, or if the period resulting from the accident becomes prolonged or enhanced due to a pre-existing condition.
On November 19, 2007 the worker was diagnosed with a possible medial meniscus tear of the left knee. The worker was assessed by an orthopaedic surgeon on December 19, 2007. The surgeon suspected a meniscus tear and arranged for an arthroscopic examination and meniscectomy.
Surgery was performed on February 7, 2008. The operative report noted a complex tear of the medial meniscus at the junction of the posterior and mid third as well as an area of grade III degenerative changes in the femoral condyle at the level of the weight bearing surface.
Following the surgery the worker returned to modified work within four weeks and was back to his regular work one week later. The surgeon’s report of March 10, 2008 indicated that the worker was pain free, there was no effusion or tenderness, his range of movement (ROM) was normal and there was no evidence of ligament laxity. The evidence supports that the worker recovered well within the expected time frame for this type of injury. In reviewing the information on file I find that there was no evidence of a pre-existing condition that prolonged or enhanced the period of recovery.
Having made the above determination I must now consider if the worker’s pre-existing condition caused or contributed to the work injury.
The claim file was reviewed by a WSIB medical consultant in March 2008. Having reviewed the medical information on file, the consultant opined that it was probable that the incident of September 2007 caused a small partial tear of the left knee. The consultant based his opinion on the medical information that was on file at the time of the review. They did not have the benefit of reviewing the operative report as this was not on file at that time. The operative report is now on file and it was noted that the meniscus tear was referred to as complex and there was no evidence of degeneration of the meniscus. The meniscus tear as described in the operative report is in keeping with an acute injury as was the case in September 2007.
The worker consistently described an incident history which started in September 2007. There was no evidence to indicate that the worker had problems with his knee prior to the incident in September 2007. In reviewing the information on file and in accepting the opinion of the WSIB medical consultant, I find that the balance of probabilities indicate that the worker did sustain a tear to his left knee in September 2007 and the injury was further exacerbated in November 2007.
While the worker representative argued that the worker’s weight may have contributed to the work incident I do not find evidence of this. Although the worker was described as a big, tall individual who was not overly obese but muscular, the treating practitioners did not refer to the worker’s weight as a contributing factor to the work injury. As well, given the mechanics of the injury which consisted of a slip and twist of the knee, I do not find that the worker’s weight would have contributed to the acute tear of the meniscus. The tear would have been a result of the twist and not due to the worker’s weight.
As previously indicated the work-related meniscus tear was compatible with the incident history of September 2007 and entitlement in this claim had been accepted for the meniscus tear. Along with the work-related meniscus tear the worker was diagnosed with pre-existing grade III degenerative changes in the femoral condyle. Given the anatomic features of the area of injury and the area of the pre-existing condition I find that there was no evidence to support that the degenerative changes in the femoral condyle caused or contributed to the acute work accident.
CONCLUSION
As the evidence on file does not support a pre-existing condition that caused or contributed to the work injury or prolonged the period of recovery, there is no entitlement to cost relief under the SIEF.
The objection is denied.
DATED July 31, 2009
K. Hille Appeals Resolution Officer Appeals Branch