WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090094
OBJECTION BY: Employer
PARTICIPANTS: Employer, Employer Representative, Worker Employer Representative
HEARING DATE: N/A
ISSUE
The accident employer (AE) objected to the case manager (CM) decision dated April 14, 2009, which:
- Limited cost relief for the AE to only 50%, through the WSIB second injury and enhancement fund (SIEF)
HOW THE ISSUE ARISES
This now 53 year-old worker joined the AE in 1975, as a forge press operator. On September 16, 2008 the worker experienced a sudden onset of left shoulder pain when prying/lifting a die set which weighed approximately 50 pounds. The injury was reported immediately, although the worker remained working on modified duties. As a result of ongoing symptoms the worker attended his doctor on September 25, 2008, when left shoulder tendonitis was initially diagnosed, conservative treatment methods recommended, additional medical investigations ordered, and specialist referral arranged. Based on the mechanics of accident, the absence of prior similar problems, and the identified injury, entitlement was granted for related health care expenses since a work absence was not incurred.
Medical investigations identified a full thickness tear of the supra and infrasupinatus tendons, tenosynovitis of the bicipital tendon, subacromion/subdeltoid bursitis, and osteoarthritis of the left shoulder. Orthopaedic review noted a modest improvement with physiotherapy. Surgical treatment was not recommended in light of the unpredictable outcome noting the size of the rotator cuff tear and risk factors associated with co-existing non-work conditions. Ongoing conservative treatment including cortisone injection was continued while the worker remained on modified duties.
With increasing injury restrictions and an economic downturn, in February 2009 the AE advised it would no longer be capable of accommodating the worker. As a result loss of earnings (LOE) benefits were activated and the worker was referred for labour market re-entry (LMR) assistance. Despite treatment a permanent impairment/non-economic loss (NEL) was anticipated, maximum medical recovery was achieved by April 2009, and a NEL assessment referral arranged.
The AE felt pre-existing conditions were present and played a contributing role in the severity of injury and or duration of disability. The AE requested 75-90% SIEF be applied. The CM review along with input from a WSIB medical consultant, concluded the severity of pre-existing condition(s) and mechanics of accident were both “minor” in nature. Based on those factors the AE was granted 50% SIEF. The AE objected to the quantum of SIEF and the objection was referred to the appeals branch for resolution.
AUTHORITY
Operational Policy (OP) 14-05-03, SIEF
RESOLUTION METHOD & PROCESS
The AE submitted an objection form identifying SIEF quantum as the objection issue. The AE subsequently submitted a completed 60-day decision election form. The AE attached an August 13, 2009 letter, which referred to non-work ailments as contributing/delaying factors. The 60-day election form presented consent to a decision without a hearing.
Although the worker expressed an interest in participating in the objection process, further input from the worker was not required, so the worker/worker representative were not contacted. However the worker/worker representative will be provided a copy of the appeal decision.
ASSESSMENT OF THE EVIDENCE
Prior to concluding my decision, I considered file documentation, WSIB OP and the discretion allowed in WSIB OP.
WSIB OP provides:
SIEF:
If a prior disability caused or contributed to the compensable accident, or if the period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF. Both physical and psychological disabilities are included.
Definitions Pre-accident disability is defined as a condition which has produced periods of disability in the past requiring treatment and disrupting employment. Pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest post-accident. Adjudication Entitlement adjudication In no lost time, lost time, permanent impairment and fatal claims, the decision to extend relief from the SIEF is usually made at the time of entitlement adjudication, or as soon as it is recognized that aggravation of a pre-existing condition is contributing to the cost of the claim. When reviewing medical and other information present in the claim file, the decision-maker considers whether the information suggests that a pre-existing condition is present and whether it
- contributed to the work-related accident, or
- prolonged or enhanced the work-related disability.
If it is likely that such circumstances exist, a recommendation to apply the SIEF is made, as well as the rate at which to do so. 50% Relief If there has been an aggravation of a pre-existing condition, or is there is evidence that the disability following the accident has been enhanced because of a pre-existing condition, 50% of the cost of the claim (compensation and health care) is charged to the SIEF.
Cases of permanent impairment If the transfer of costs to the SIEF exceeds 50% the employer receives the benefit applied to all or part of the claim, depending on the individual circumstances. SIEF-application to employer costs
Medical significance of pre-existing condition*
Severity of accident**
Percentage of cost transfer***
Minor
Minor Moderate Major
50% 25% 0%
Moderate
Minor Moderate Major
75% 50% 25%
Major
Minor Moderate Major
90%-100% 75% 50%
NOTES * The medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. An associated pre-accident disability may not exist. With psychological conditions, the possibility of prior psychic trauma resulting from life experience could be considered as evidence of vulnerability, and justify recommending relief to the employer, even in the absence of pre-existing psychological impairment. ** The severity of the accident is evaluated in terms of the accident history and approved definitions. Accident History Components
- mechanics (lift, push, pull, fall, blow, etc.)
- position (kneeling, standing, sitting, squatting, bending, etc.)
- environment (lighting, temperature, weather conditions, terrain, etc.)
Definition - "Severity of Accident"
Minor: expected to cause non-disabling or minor disabling injury
Moderate: expected to cause disabling injury
Major: expected to cause serious disability probable permanent disability
ANALYSIS:
Based on the overall evidence, I find an increase to the quantum of SIEF was not supported. I base my conclusion on the following:
Pre-injury duties appeared relatively heavy/strenuous
Worker performed press operator duties for 30+ years
Worker was 52 years of age at the time of the September 16, 2008 workplace accident
AE’s report of accident indicated no prior similar problems/injuries
Health care practitioners indicated no pre-existing or other conditions/factors delaying recovery, prior to the findings in the October 6, 2008 ultrasound
Despite pre-existing cardiac, hypertension and abdominal aortic graft, those conditions did not prevent the worker from performing his pre-injury duties
Pre-existing cardiac, hypertension, and abdominal aortic graft were not reported to be barriers to the worker’s return to work
Dr. Song – Orthopaedic surgeon (October 28, 2008) report read in part:
“…His [worker] active range of motion [left shoulder] is fairly good but there is some crepitus and he has a lot of pain and weakness with resistance to abduction and external rotation. The ultrasound shows that he has a full thickness rotator cuff tear measuring 3 x 2.2 cm. which is very large. We talked about treatment. He is already in physical therapy and noticed some modest improvement. I think that having surgery for this is unpredictable given the size of his tear and makes it even less appealing given the nature of his cardiac risks. For the time being I have given him a cortisone injection and will seen him again in another few months.”
Memo #11 (April 2, 2009) WSIB medical consultant review regarding severity of pre-existing, considered the pre-existing conditions and worker’s circumstances (eg. Age at time of injury, etc.)
Sunnybrook Health Sciences Centre (April 13, 2009) report read in part:
“…With or without surgery Mr. X will need modified work avoiding impact activity, heavy lifting, overhead activity, any type of repetitive or forceful use of the right shoulder against resistance…”
Reference to right shoulder in the Sunnybrook Health Sciences Centre (April 13, 2009) appeared to be a typographical error noting the beginning of the report and balance of file documentation quoted left shoulder
AE letter (April 20, 2009) did not question the severity of accident which was deemed to be “minor” in nature
Need for LMR services stemmed from AE’s inability to accommodate the worker/workplace injury
Worker participated in WSIB sponsored LMR activities
Given the AE did not provide evidence supporting its allegation regarding impacts of the pre-existing non-work ailments; I find the pre-existing non-work ailments to be non-issues in respect to return to work issues. While the cardiac condition may be influencing the decision regarding left shoulder surgery, medical evidence indicated that regardless of the cardiac condition the end result of surgery (if pursued) would still require extensive injury restrictions and necessitate LMR assistance. Since there was no evidence of pre-September 16, 2008 left shoulder problems, the majority of physical findings are reasonably the result of the September 16, 2008 workplace accident. Only minor degenerative findings were noted of which some would reasonably be present in a worker of 52 years of age and in a physically strenuous occupation for 30+ years. Based on these factors I accept the WSIB medical consultant opinion regarding the severity of pre-existing condition.
CONCLUSION
In summary,
- Denial of increased SIEF beyond 50% is upheld
The AE’s objection is denied.
DATED October 8, 2009
G. Ciccocelli
Appeals Resolution Officer
Appeals Branch