WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS MANAGER RECONSIDERATION DECISION
Decision Number: 20140001 Decision Date: December 1, 2014
Objecting Party: Worker Represented by: Worker Representative
Respondent: Employer Represented by: Self-Represented
Hearing: Hearing in Writing Heard by: F. Broad, Appeals Manager
ISSUE
The worker’s representative requests reconsideration of an Appeals Resolution Officer (ARO) decision dated January 8, 2013. Specifically, the representative requests reconsideration of a finding made by the ARO regarding the nature of the worker’s pre-existing osteoarthritic condition within the context of her determination of entitlement for Second Injury and Enhancement Fund (SIEF) cost relief to the employer.
HOW THE ISSUE ARISES
The employer brought forward several operating area decisions for appeal and review by an ARO in the Appeals Services Division (ASD). One of those decisions involved a Case Manager (CM) determination that the employer was not entitled to SIEF cost relief. In her review of this issue, the ARO made a finding of fact with respect to the nature and extent of the worker’s pre-existing osteoarthritic right knee condition.
The worker’s representative subsequently argued for a reconsideration of this finding on the basis of both a substantive defect in the ARO’s decision and the availability of significant new evidence that did not exist at the time the ARO made her decision. As the ARO who rendered the decision is no longer in the ASD, in keeping with the process outlined in the Appeals Services Division Practice and Procedures document, the reconsideration request was forwarded to me as a manager in the ASD for review.
After receiving a submission from the employer in light of the worker representative’s request, I determined that the threshold test for reconsideration of the ARO’s decision had been met on the basis of the availability of significant new evidence that did not exist at the time the ARO made her decision.
To assist me in my reconsideration, a medical opinion was sought from a Physician Consultant on several issues. The medical opinion provided by the Consultant was shared with the workplace parties and final submissions sought from them on the issue before me. In their submission, the employer argued that, as I had agreed to a reconsideration of the nature of the worker’s pre-existing condition, my review should also reconsider the issue of SIEF cost relief. The worker’s representative similarly suggested that my decision on the nature of the worker’s pre-existing condition should be framed within a decision on the issue of SIEF cost relief. As a result of these submissions, I am expanding my reconsideration decision to include:
- The nature of the worker’s pre-existing right knee condition.
- The employer’s entitlement to SIEF cost relief in this claim.
AUTHORITY
The reconsideration will be reviewed in light of Operational Policy:
14-05-03 Second Injury and Enhancement Fund (SIEF)
ASSESSMENT OF THE EVIDENCE
As the original ARO decision may be referenced for additional detail about this claim, I will limit my comments to the two issues that I am reconsidering from that decision.
Pre-Existing Right Knee Condition
In considering the nature and extent of the worker’s pre-existing right knee condition at the time of her accident, I find the following of significance:
- The worker sustained an injury to her right knee when she slipped on ice while pushing a bin and landed on the knee. Initial medical treatment was sought with the family physician who diagnosed the worker with a soft tissue injury of the right knee and ankle.
- An x-ray of the right knee taken on January 18, 2012 (2 days after the accident) showed a finding of very mild osteoarthritis with no other abnormalities identified.
- The worker was initially misdiagnosed and the extent of her injury not fully appreciated. Subsequent medical treatment the worker received in March 2012 showed that she had a right tibial plateau fracture and findings in keeping with mild osteoarthritis, confirmed through a CT scan dated March 11, 2012. Entitlement for the tibial plateau fracture was allowed by the CM as related to the accident on January 16, 2012.
- Subsequent test results showed progression of the worker’s osteoarthritis findings with moderate tricompartmental osteoarthritis most advanced in the medial compartment noted in early May 2012 and findings of severe tricompartmental osteoarthritis more advanced in the patellofemoral and medial joint compartments in the July 4, 2012 MRI.
- The January 22, 2013 note from the worker’s treating specialist wherein he commented that the worker “has post-traumatic osteoarthritis in the knee which has been caused by her tibial plateau fracture. I believe the tibial plateau fracture has been instrumental in the development of substantial and accelerated arthritic changes in her knee.”
- The Physician Consultant review noting that tricompartmental arthritis can arise from post-traumatic causes and more specifically the type of trauma sustained by the worker in her accident on January 16, 2012. I also note his opinion that the rapid progression of the osteoarthritic findings was likely related to the trauma the worker sustained. I find his opinion consistent with that put forward by the worker’s treating specialist.
Based on my review of the medical information on file and taking into account the opinions put forward by the worker’s treating specialist and the WSIB Physician Consultant, I find that the worker had pre-existing, mild osteoarthritis in her right knee at the time of her accident on January 16, 2012. I also find that the significance of the worker’s accident, the misdiagnosis and subsequent lack of appropriate treatment for her injuries and the nature of the injuries themselves, led to a rapid progression of the worker’s osteoarthritis. The development of severe tricompartmental, post-traumatic osteoarthritis is, in my view, directly related to the worker’s accident of January 16, 2012.
SIEF Cost Relief
In determining whether to extend claim cost relief to the employer under the Second Injury and Enhancement Fund policy, I must determine that a pre-existing condition was present prior to the accident and whether it
- contributed to the work-related accident, or
- prolonged or enhanced the work-related disability.
In their submission the employer argued that medical reports on file for this worker pre-dating her accident on January 16, 2012 showed her to have been suffering from a long-standing and significant pre-existing condition dating back to at least 2009 that would warrant SIEF relief. Their submission highlights some of these medical documents in support of their position.
In terms of medical documentation pre-dating the worker’s accident on January 16, 2012, there are fairly extensive notes on file from her family physician and Windsor area hospitals. The hospital records primarily cover two periods of admission; in 2009 for treatment of an onset of right sided weakness and paraesthesia, and in 2010 for treatment following a fall.
On reviewing the pre-accident medical notes, I do not find much in the way of reference to right knee problems. There is an x-ray report for the right knee taken on March 9, 2010 following the worker’s fall. The report notes that no fracture dislocation or joint effusion was identified. Aside from that report, I note reference to some lower leg pain (knee) in an entry by the family physician in July 2011.
My review of this medical documentation does not support the assertion of the employer that the worker had a long-standing and significant pre-existing condition. As noted earlier in my decision, the medical reports on file do support that the worker had pre-existing, mild osteoarthritis in her right knee at the time of her accident.
However, noting the accident history of the worker slipping on ice while pushing a bin and landing on her knee, I do not consider the worker’s mild right knee osteoarthritis a factor contributing to the work-related accident. Furthermore, noting my earlier findings with respect to the development of the worker’s severe tricompartmental, post-traumatic osteoarthritis in relation to her accident, I also find no compelling evidence to support that the worker’s mild right knee osteoarthritis was a factor in prolonging or enhancing the work-related disability. I thus find no basis to extend cost relief to the employer under the Second Injury and Enhancement Fund.
CONCLUSION
I conclude the following:
The worker’s objection is allowed. The worker had pre-existing mild osteoarthritis at the time of her accident. The subsequent development of severe tricompartmental, post-traumatic osteoarthritis resulted from her accident on January 16, 2012.
There is no basis for cost relief under the Second Injury and Enhancement Fund. The worker’s pre-existing mild osteoarthritis was not a factor in contributing to the accident or in prolonging or enhancing the work-related disability. The employer’s objection is denied.
DATED December 1, 2014 at Toronto, Ontario.
F. Broad Manager Appeals Services Division