WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100171
OBJECTION BY: Employer
WORKER: Participating
REPRESENTATIVES: Worker Representative, Employer Representative
ISSUE
The employer’s representative objects to the acceptance of the January 20, 2010 accident claim 25XXXXXX, maintaining it is a recurrence of claim 20XXXXXX. In the alternative, relief of costs under the Second Injury and Enhancement Fund (SIEF) is requested.
HOW THE ISSUE ARISES
Claim 25XXXXXX was established for this then 59 year old factory worker on January 20, 2010 while pushing a carton weighing approximately 65 kilos experienced lower back discomfort. Medical reporting provided a diagnosis of lower back pain/muscle spasm. X-rays revealed mild disc disease at L1-2 and L2-3 and more advanced at L3-4, with lipping from the vertebral bodies. The worker underwent a conservative treatment program consisting of physiotherapy. Entitlement was accepted for health care benefits as no lost time was incurred.
Under claim 20XXXXXX on January 13, 1997 the worker while strained his lower back. A diagnosis of sciatica and possible prolapsed disc was advanced. Following an assessment at the Regional Evaluation Centre in May 1997 the prognosis for recovery was guarded. Loss of Earnings (LOE) benefits were awarded from January 15, 1997 to May 13, 1997 and partial LOE benefits May 13, 1997 to November 24, 1997 (memorandum 57).
Following a Non Economic Loss (NEL) assessment in September 1997, the worker was granted a 17% award recognizing the residual lower back impairment.
The employer was granted 50% cost relief on the basis that there was evidence of a minor pre-existing condition.
In the current claim, the employer requested cost relief under the Second Injury and Enhancement Fund (SIEF). The Case Manager, as delineated in the correspondence dated April 7, 2010 concluded the recovery was not prolonged. In a subsequent decision dated June 17, 2010 the Case Manager addressed the issue of recurrence and in this respect, concluded the incident of January 20, 2010 was not a recurrence, but rather, a new and specific incident. The employer is not in agreement and these are the issues for determination.
AUTHORITY
Operational Policy Document:
15-03-01-Recurrences
14-05-03-Second Injury and Enhancement Fund
RESOLUTION METHOD & PROCESS
The employer’s representative submitted a 60 Day Decision Option form dated October 25, 2010.
ASSESSMENT OF EVIDENCE
The Appeals Resolution Officer has considered the information on record.
In dealing with issues of whether or not entitlement should be accepted as a recurrence or a new claim, Operational Policy Document 15-03-01 speaks to the subject.
The Policy states entitlement for a recurrence will be accepted provided there is medical compatibility between the original injury and subsequent condition. Such a relationship can be established by examining elements of continuity such as medical treatment, complaints by the worker and work history. It must be shown, the nature of the impairment causing the layoff is compatible with the accident history and there can be no intervening factor, which would break the chain of causation between the original compensable injury and the claimed condition.
Decision-makers, in determining whether a claim should be accepted as a recurrence must assess the circumstances at the time of the submission of the claim.
The Board’s policy reflects the underlying legal principle that a worker is entitled to benefits for an impairment or disability that results from an injury by accident in the course of employment. The test generally applied to determine whether an impairment or disability has resulted from an injury by accident in the course of employment is whether the injury by accident made a significant or material contribution to the subsequent impairment or disability. As the policy indicates, the decision-maker is to consider such factors as medical compatibility and continuity in resolving the issue.
In this case, there is no dispute the worker has a prior established claim (20492767) with a permanent impairment, however, there is no evidence the worker’s prior claim limited his abilities, with no evidence of regular medical attention.
More importantly, the incident of January 20, 2010 is viewed as significant, as the worker was attempting to move a 65 kilogram box. This is viewed as a distinct and intervening incident with little in the way of medical continuity from the prior claim. In this respect, the policy on recurrences is clear, that is, if there is a significant new work-related accident, a new claim is established.
The worker on January 20, 2010 sustained a personal injury by accident in the course of employment, which was immediately reported and medical attention sought. The accident occurred while the worker was engaged in the performance of a work-related duty.
When the worker sought medical attention, he related the onset of back pain to the incident of January 20, 2010 and this incident is viewed as cause for the need for medical attention.
As noted in the Case Manager’s correspondence dated April 6, 2010, the worker’s entitlement under claim 25XXXXXX has ceased, with the need for continued restrictions related to claim 20XXXXXX.
As it relates to the issue of cost relief under the Second Injury and Enhancement Fund, Operational Policy Document, 14-05-03 is referenced. The policy states:
“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”.
According to Board policy, the significance of a pre-existing condition is to be assessed in terms of the extent that it makes the worker more liable to develop an impairment of a greater severity than a normal person.
A pre-accident disability is defined as a condition, which has in the past produced periods of disability requiring treatment or disrupting employment.
A pre-existing condition is defined as an underlying or asymptomatic condition, which only becomes manifest post-accident.
Though there is a pre-accident disability for which the worker was granted a NEL award for the residual lower back impairment, one cannot dispute, the incident of January 20, 2010 was significant, requiring exertion on the part of the worker.
Based on the available documentation, there is no evidence the pre-accident disability resulted in the worker being more likely to develop an impairment of greater severity than what was expected for this type of accident. The type of injury, which followed the January 20, 2010 accident, was consistent with the mechanics of the accident, with the recovery not viewed as being prolonged or enhanced.
CONCLUSION
In the judgement of the Appeals Resolution Officer, there is no basis for amalgamating claim 25XXXXXX in to claim 20XXXXXX, as the worker on January 20, 2010 sustained a new and specific incident warranting the establishment of a new claim. Furthermore, there is no basis for relief of costs under the SIEF.
The employer’s objection is therefore denied.
DATED December 7, 2010
M. De Marco
Appeals Resolution Officer
Appeals Branch