WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100183
OBJECTION BY: Employer
PARTICIPANTS: Employer, Employer’s representative
HEARING DATE: N/A
ISSUE
The employer is requesting entitlement to Second Injury and Enhancement Fund (SIEF).
HOW THE ISSUE ARISES
On August 21, 2006, the worker, a 38 year old security officer at the time, pulled on a stroller which was caught in the screening machine in an effort to free it and injured her neck, upper back and shoulders. Entitlement was granted for a myofascial strain of the neck, shoulders and back. The worker received loss of earnings (LOE) benefits from August 24, 2006 until November 18, 2006. The case manager determined the worker’s organic compensable conditions had recovered and furthermore there was no entitlement to chronic pain disability (CPD) or a psycho traumatic disability. She informed the workplace parties of this decision in a letter dated November 21, 2006.
The employer requested entitlement to Second Injury and Enhancement Fund (SIEF) cost relief in a fax directed to the case manager dated February 5, 2007. The case manager denied entitlement and informed the workplace parties in a letter dated February 13, 2007; the employer submitted a letter dated May 27, 2008 objecting to this decision.
In the meantime, the worker objected to the case manager’s decision dated November 21, 2006 and an appeals resolution officer (ARO) decision dated April 15, 2008 confirmed the decision. The worker pursued the objection to the Workplace Safety and Appeals Tribunal (WSIAT) and their decision dated May 20, 2009, concluded the following:
The worker is entitled to
An LMR assessment
LOE benefits from November 18, 2006 to the date of the LMR assessment
The worker is not entitled to
- CPD
The worker’s representative withdrew the issue of entitlement to a psychotraumatic disability.
On July 27, 2009, the employer’s representative wrote to the case manager citing that information that came to light during the oral hearing at WSIAT identified and confirmed the worker had a pre-existing condition such as degenerative changes in the worker’s neck and back that profoundly delayed her recovery. Furthermore, he noted that new information from the worker’s treating physician and specialist also identified extensive degenerative changes and findings in the cervical and lumbosacral regions. He felt this was the basis for consideration of entitlement to Second Injury and Enhancement Fund (SIEF) relief.
The case manager reviewed the evidence and in a letter dated September 28, 2009 denied entitlement to the Second Injury and Enhancement Fund (SIEF) as at the time of the injury, the worker’s conditions were only identified as strain and the findings on MRI became apparent two years after the injury.
The employer is objecting to this decision.
AUTHORITY
WSIB Operational Policy Manual (OPM) documents:
11-02-01 – Decision Making
14-05-03 – Second Injury and Enhancement Fund (SIEF)
RESOLUTION METHOD AND PROCESS
The employer’s representative requested a decision with the evidence in the file. The worker did not participate in the objection process.
ASSESSMENT OF THE EVIDENCE
In making this decision, I considered the relevant WSIB law and operational policy as well as the evidence in the file.
WSIB Operational Policy Manual (OPM) document: 14-05-03 – Second Injury and Enhancement Fund (SIEF) 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 I to the Second Injury and Enhancement Fund (SIEF) both physical and psychological disabilities are included.”
The policy defines a pre-accident disability as a condition which has produced periods of disability in the past requiring treatment and disrupting employment. A pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest post accident.
There is no evidence the worker had a pre-accident disability as defined by WSIB OPM document so the focus of this decision is whether the worker has a pre-existing condition which caused the period resulting from her accident to become prolonged or enhanced.
The worker saw her family physician initially and the Health Professional’s Report (Form 8) based on a treatment date of August 21, 2006 provides a diagnosis of cervical and lumbar strain, dizziness, both shoulders pain. In response to the question “are you aware of any pre‑existing or other conditions/factors that may delay recovery”, the doctor responded no. His treatment plan included medication and physiotherapy treatment.
Subsequent reports from the worker’s family physician remained unchanged and the worker was assessed at a regional evaluation centre (REC) on October 18, 2006 by a team consisting of a physician and physiotherapist. The pre-assessment instructions to the worker included a request for the worker to bring any x-rays which were done with her to the assessment. Although the physiotherapist’s report based on a treatment date of August 31, 2006 noted the worker was referred for an x-ray there is no other reference to this in the file. The REC team examined the worker and felt she sustained a myofascial neck, shoulder and back strain and indicated it was doubtful whether continuing physiotherapy would be of any assistance. However, they opined a psychological evaluation was indicated.
The worker underwent an MRI of the cervical, thoracic and lumbar spine on December 3, 2007. The assessor reported the findings as follows:
Cervical spine - the impression was trivial degenerative changes of the C5-6 level and no other abnormalities.
Thoracic spine - the impression was “limited study due to significant patient motion.” T11-12 small central disc herniation without cord or nerve root impingement. No other obvious abnormalities.
Lumbar spine – the impression was L4-5 minimal degenerative changes and tiny annular tear.
Dr. Kachooie, physical medicine and rehabilitation consultant submitted a report to the file dated April 9, 2008. He noted the MRI studies were essentially normal and found the worker’s symptoms and findings were consistent with
Cervical spondylosis
Lumbosacral spondylosis
Rotator cuff tendonitis – right
Greater occipital neuralgia headaches
Poor physical shape
A repeat MRI of the lumbar spine done on November 8, 2008 showed the following:
The conus is noted at the T12 – L1 level. There is no vertebral body compression and the alignment appears satisfactory
At the T11 – 12 level there are degenerative changes with some narrowing of the disc space and mild end plate irregularity with lateral disc protrusion particularly on the right side associated with an annular tear but no evidence of nerve root impingement or canal stenosis
There is a bilateral facet arthropathy at the L3-4 level but no canal stenosis
At the L4-5 level there are degenerative changes with a broad based bulge associated with a prominent annular tear. There is bilateral facet arthropathy with a broader line canal stenosis
The worker underwent a CT scan of the cervical spine on June 24, 2009 which showed “trivial degenerative changes of the lower cervical spine. No other significant abnormalities. Incidental note is made of a low density left thyroid nodule measuring 1.5 centimetres. This could be further evaluated with an ultrasound study.”
The Health Professional’s Progress Reports based on service dates of November 16, 2009, January 16, 2010 and February 19, 2010 completed by the worker’s family physician all note there were no complicating factors that influenced the worker’s recovery and return to work.
I acknowledge the representative’s submission dated November 25, 2009 at which time he pointed out that Dr. Kachooie in his report dated April 9, 2008 identified cervical spondylosis and lumbosacral spondylosis. The representative described these as two serious pre-existing conditions and identified them as the reason why the worker has been unable to return to work. The representative also noted the findings on the MRI dated December 2, 2005 confirmed the extent of the worker’s degenerative disc disease at T11-12 and L4-5 as well as an annular tear associated with degenerative changes at L4-5 level.
After carefully reviewing the evidence presented, I find the employer is not entitled to SIEF for the following reasons:
Dr Kachooie reviewed the MRI findings of December 3, 2007 and noted they were essentially normal. This would suggest to me that any findings on the MRI were not of sufficient medical significance to affect the worker’s recovery.
Dr Kachooie reported the worker ‘s symptoms and findings were consistent with cervical and lumbar spondylosis but this is not confirmed on MRI or CT scan
The worker’s family physician, who had been treating her since the date of the accident, completed subsequent progress reports confirming he was unaware of any factors delaying the worker’s recovery
CONCLUSION
I conclude the employer is not entitled to Second Injury and Enhancement Fund (SIEF) relief as the evidence does not support the worker had a pre-accident disability or a pre-existing condition that affected her recovery and return to work.
The employer’s objection is denied.
DATED November 15, 2010
D. Hart
Appeals Resolution Officer
Appeals Branch