WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECICION NUMBER: 20110028
OBJECTION BY: Employer
PARTICIPANTS: Employer Representative, Worker Representative
HEARING: N/A
ISSUE
The employer is requesting entitlement to Second Injury and Enhancement Fund (SIEF).
HOW THE ISSUE ARISES
The worker was a 54 year old marble technician on October 22, 2008 when he was polishing a piece of marble weighing approximately 400 pounds. As he applied pressure, the piece tipped over and struck him on his left leg. Entitlement was initially granted for the left thigh and an appeals resolution officer’s decision dated August 6, 2009 extended entitlement to include a low back condition. Following the appeals resolution officer’s decision, the worker received loss of earnings benefits from October 27, 2008 to January 6, 2009 and again from March 10, 2010 to June 18, 2010. The file record shows a permanent impairment is expected for the low back condition but no non-economic loss (NEL) assessment has been done as yet.
In a letter dated February 10, 2010, the employer’s representative requested entitlement to SIEF on the basis of the results of an MRI of the left knee and a CT scan of the worker’s lumbar spine which showed evidence of a pre-existing condition. He followed up with a letter dated March 2, 2010 outlining that an x-ray report dated November 11, 2008 showed additional evidence of a pre-existing condition. A case manager reviewed the evidence and denied entitlement to SIEF on the basis that any findings on the investigations are incidental and in keeping with the worker’s age and personal physical characteristics. She informed the workplace parties of this decision in a letter dated June 4, 2010.
The employer’s representative is objecting to this decision.
AUTHORITY
WSIB Operational Policies:
11-01-02 - Decision-Making
14-05-03 - Second Injury and Enhancement Fund (SIEF)
RESOLUTION METHOD AND PROCESS
The employer’s representative completed and submitted a 60 day decision option form requesting a decision with the evidence in the file and his submission attached to the objection form. The worker’s representative completed and submitted the worker participant form.
ASSESSMENT OF THE EVIDENCE
In making this decision, I considered the relevant WSIB legislation and operational policy documents in addition to the evidence in the file.
The employer’s representative is requesting entitlement to 50 to 75 per cent SIEF and outlined his reasons in a letter dated September 8, 2010 as follows:
- The medical records show the worker had a lumbar strain and a full recovery was expected within 12 weeks of a Regional Evaluation Centre (REC) report dated January 16, 2009. However, the worker continued to have significant pain and therefore he found it was reasonable to conclude the worker’s recovery was enhanced/prolonged by an underlying condition such as degeneration or calcification of his back and knee areas.
- An MRI of the left knee showed bicompartmental osteoarthritis
- A CT scan of the lumbar spine showed bilateral spondylosis at the L5 level as well as bilateral sacroilitis
- A report dated November 11, 2008 stated the worker has degenerative spurring of the upper lumbar vertebrae and bilateral spondylosis and Grade 1 spondylolisthesis of L5 as well as spina bifida occulta of S1.
He felt the worker’s osteoarthritis of the knee, degenerative disc disease in the lumbar spine, spondylolisthesis and spina bifida occulta makes the worker more at risk for developing a disability of greater severity than the average person in a similar situation. He noted the worker was symptom free prior to the minor work related accident and given his pre-existing conditions, the employer should be entitled to 50-75 per cent SIEF.
The case manager determined there was no evidence that a pre-existing condition prolonged or enhanced the claim and the findings on imaging results reveal only minimal changes which are incidental and in keeping with the worker’s age and personal characteristics. She determined any ongoing soft tissue injury and treatment is related to the worker’s accident so the employer is not entitled to SIEF cost relief.
WSIB Operational Policy 14-05-03 Second Injury and Enhancement Fund (SIEF) states in part:
“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.”
The policy defines a pre-accident disability as a condition which has produced periods of disability in the past requiring treatment and disrupting employment. It further defines a pre-existing condition as an underlying or asymptomatic condition which only becomes manifest post-accident.
There is no evidence of a pre-accident disability as defined by WSIB operational policy, so I have to consider is whether the worker has a pre-existing condition that caused the period resulting from the accident to become prolonged or enhanced.
After carefully reviewing the evidence presented I find the worker’s pre-existing condition did not cause the period resulting from the accident to become prolonged or enhanced.
- An x-ray of the lumbar spine done on November 5, 2008 showed degenerative spurring of upper lumbar vertebrae and bilateral spondylolysis and Grade 1 spondylolisthesis of L5 and spina bifida occulta of S1.
- A CT scan of the spine done on December 23, 2008 showed bilateral spondylolysis at L5 and asymmetric sacroiliitis.
- An MRI of the spine done on April 3, 2009 showed the lumbar disc spaces were fairly well preserved but there were mild facet joint degenerative changes. There was no acute abnormality, no focal disc herniation and no central or lateral recess stenosis at any level.
- An MRI of the left knee done on April 15, 2009 showed bicompartmental osteoarthritis.
- Dr. Han, a physiatrist, examined the worker and provided a report dated May 8, 2009. He made reference to the findings on the MRI of the left knee and CT scan of the lumbar spine and after performing electrodiagnostic evaluation for the worker’s thigh pain, he concluded, “At this point I have no reason to believe that his symptoms are anything more serious than a soft tissue strain/bone contusion. The CT scan’s findings of a very minor possible chip fracture or stress injury at the left trochanteric region is likely irrelevant.”
- In a report dated March 24, 2010, Dr. Wong, an orthopaedic surgeon, acknowledged the findings on investigation including MRI and CT scan of the lumbar spine, an MRI and x-ray of both knees, and reported, “I cannot establish an exact reason for his severe knee pain based on the imaging studies so far.” He recommended a bone scan to attempt to localize the source of the worker’s pain.
- Dr. Wong submitted a report dated May 12, 2010 stating the bone scan of the lumbar spine and the knee showed mild non-specific increase uptake in the lateral aspect of the right knee although he did not see any significant abnormal activity in the lumbar spine. He felt based on the investigations, including the MRI and bone scans, there was no further surgical treatment and the worker was going to require permanently modified work due to his knee pain.
- Dr. Wong submitted a further report dated July 14, 2010 confirming the bone scan did not show any obvious abnormalities and the worker does have mild and non-specific increased uptake in the right knee. Based on the various investigations, the doctor did not feel there was any surgical treatment and recommended that he be placed on permanently modified light duties.
- The worker’s treating physician completed a Health Professional’s Progress Report (Form 26) dated July 19, 2010 and in answer to the question “are there any complicating factors that may influence your patient’s recovery and return to work?” he stated yes and referenced chronicity, severity of injury, workplace fight, and legitimacy.
- A WSIB medical consultant documented his opinion in Memo 121 dated December 13, 2010. He acknowledged the investigations including x-rays, CT scans, MRI and bone scans and opined the worker appears to have sustained a significant injury to the leg and lower back. He noted there was a discrepancy in the findings on CT scan and MRI and preferred the MRI findings over those on the CT scan. In his view, the results of the investigations do not support that the worker’s prolonged condition was enhanced or prolonged because of any underlying condition.
When I considered the medical evidence in its entirety, I do not find the worker had a pre-existing condition that caused or contributed to a delay in his recovery. The worker’s treating practitioners and the WSIB medical consultants acknowledged the findings on all the investigations, however none of them opined these findings were implicated in any way in prolonging or enhancing the worker’s continuing compensable condition.
CONCLUSION
I conclude the employer is not entitled to SIEF as a prior disability did not cause or contribute to the compensable accident nor did the period resulting from the accident become prolonged or enhanced due to a pre-existing condition.
The employer’s objection is denied.
Dated March 8, 2011
D. Hart Appeals Resolution Officer Appeals Branch