WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION WITHOUT A HEARING
60 DAY ELECTION
DECISION NUMBER: 20100117
OBJECTION BY: The Employer
WORKER: Not Participating
REPRESENTATIVE: Employer Representative
ISSUE
The issue in dispute is entitlement to Second Injury and Enhancement Fund (SIEF) relief.
HOW THE ISSUE ARISES
Entitlement was extended in this claim for an injury sustained on July 28, 2008 when the 46 year old purchasing worker developed right elbow pain as a result of repetitive keyboarding and mousing. Initial entitlement was extended for a right lateral epicondylitis but ultimately following the development of a chronic pain associated with depression post traumatic stress disorder was also entitled.
As a result of the worker’s non organic condition, she was unable to pursue suitable employment and was forced to stop working as of March 17, 2009.
In a request of March 2, 2009, the employer representative postulated the existence of a pre‑existing or underlying condition that was enhancing the worker’s work related impairment. Entitlement to Second Injury and Enhancement Fund (SIEF) relief was requested.
In a response of March 9, 2009, the case manager advised that upon review of the file and the medical documentation contained therein, that there was no evidence of a pre-existing or underlying condition that might reasonably be expected to have enhanced the worker’s work related impairments. Consequently, Second Injury and Enhancement Fund (SIEF) relief was denied. The employer representative posted their intent to appeal in a letter of March 23, 2009.
On March 5, 2010, the employer representative submitted that in accordance with Operational Policy 14-05-03; Entitlement to Second Injury and Enhancement Fund (SIEF) relief on the basis that the worker had prior non organic conditions which enhanced the development of her post traumatic stress disorder.
The file was assessed by the Second Injury and Enhancement Fund (SIEF) review team and in the letter of March 31, 2010 it was noted that entitlement for right lateral epicondylitis followed by post traumatic stress disorder had been extended in the claim. No evidence of a pre‑existing organic elbow injury was found in the medical record. A review of the worker’s psychiatric record established some evidence of a single episode of depression related to the passing of the worker’s mother. It was also noted however that the worker’s pre-incident history lifestyle was one of significant activity and that this had been disrupted by the work related injury. It was found that the medical record documented no pre-existing non organic treatment and that the submission by the employer representative that the worker had exhibited “certain pre-morbid personality characteristics” was insufficient to establish the presence of a condition as defined by the WSIB Policy. Consequently, entitlement to Second Injury and Enhancement Fund (SIEF) relief was denied.
The employer has objected to this decision and the issue is before the Appeals Branch.
AUTHORITY REFERENCE:
Please refer to Workplace Safety and Insurance Act (the Act) Operational Policy Manual (OPM) document(s): 14-05-03;
RESOLUTION METHOD AND PROCESS
The employer has submitted a waiver to obtain a decision without a hearing within 60 days.
ASSESSMENT OF THE EVIDENCE
In his August 18, 2010 submission, the employer representative cites that Operational Policy 14‑05‑03; supports “the possibility of a prior psychiatric trauma resulting from life experience could be considered as evidence of vulnerability” that would enhance a work related injury.
He further notes the incident history of July 28, 2008 involved keyboarding and mousing and that the worker developed a right lateral epicondylitis and secondarily, a psychological impairment leading to the lost time from March 17, 2009. He cites reporting from Dr. R. McMurtry of April 16, 2009 and January 19, 2010 that supports ongoing pain in the right arm and evidence of pre-existing injuries to the back that were implicated in the development of the worker’s “evolving complex regional pain syndrome” as well as mood disorders. Dr. Shapiro’s report of May 8, 2009 was cited as supporting the worker’s pre-morbid personality as rendering her at risk for increased pain and making the worker vulnerable.
I have carefully reviewed the medical record. The initial reporting to the claim file revolves around the development of the repetitive strain injury to the worker’s right elbow. No evidence of any pre-existing organic injury in the worker’s right upper extremity has been identified. The MRI of October 17, 2008 of the right elbow notes findings in keeping with tendonitis and a partial intra substance tearing of the right common extensor. Incidental note of an apparently small left kidney was documented but no significance in respect to the worker’s elbow injury is drawn in any reporting.
The worker was referred to the regional evaluation centre (REC) and was assessed there on November 4, 2008. This report documents that the worker had a WSIB claim for a low back problem many years previous but that she had had no recent hospitalizations and that her general medical health is good. No association between the worker’s work related right elbow injury and any previous medical condition is drawn with respect either to the cause of the elbow condition or its continued symptomatology.
The Health Professional’s First Report for treatment administered on April 17, 2009 was received on file following the worker’s incursion of lost time from work. The physician was not the worker’s primarily health professional but noted no treatment had been previously administered for a worsening repetitive strain injury that was diagnosed as a complex regional pain syndrome. The doctor considered the worker to be unable to work for six months at any employment.
She was referred to the WSIB Upper Limb Specialty Clinic and was assessed on April 16, 2009 by Dr. McMurtry. Past health was noted to be positive for a low back pain many years previous with also undated injuries to the coccyx and spinal discs. However, the doctor states, “there is nothing relevant to this current complaint”. The diagnostic impression was lateral epicondylitis right elbow and evolving complex regional pain syndrome along with mood disorders. While in the specialty clinic, the worker was assessed by Dr. Shapiro on May 8, 2009. This report cited by the employer representative as providing evidence that the worker possessed pre-morbid personality characteristics that had impacted her work related injury does not support the theory in my view. Rather, in citing the worker’s self description as being used to “having been exceedingly active, productive and having very high standards”, it is indicated that she is one of a group that become quite “despondent when pain and associated limitations do not allow them to maintain pre-morbid levels of productivity and standards”. No where in the medical record or in the employer representative’s submissions has any trauma been identified as having lead to the increase in the vulnerability of the worker to develop a non organic pain complaint. The overwhelming evidence in the medical record is that the worker had no such trauma but in having her pre-injury lifestyle disrupted by her work related organic injuries developed a non organic pain component.
In assessing the worker’s incident history, I would accept that no impairment would normally result from the repetitive use of a keyboard or computer mouse and that consequently the incident history must be considered minor. Under the Workplace Safety and Insurance Board (WSIB) Second Injury and Enhancement Fund (SIEF) entitlement rubric, no pre‑existing condition has been identified and so no significance can therefore be attached to it under the same rubric no SIEF quantum can be determined.
Accordingly, there is no basis to extend SIEF relief in this claim.
CONCLUSION
There is no entitlement to Second Injury and Enhancement Fund (SIEF) relief.
The employer’s objection is denied.
DATED September 9, 2010
(Mr.) B. J. Martlin
Appeals Resolution Officer
Appeals Branch
/885046/sb