WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150075
DECISION DATE:
July 13, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT:
REPRESENTED by:
Employer
Employer Representative
HEARING:
Hearing in Writing
HEARD by:
F. Bruno, Appeals Resolution Officer
ISSUE
Second Injury and Enhancement Fund (SIEF) Relief
BACKGROUND
Date of Case Manager Decision:
February 24, 2014 and August 26, 2014
Case Manager’s Conclusion:
There is no evidence of a pre-existing condition that has contributed to the injury or delayed recovery.
AUTHORITY
Policy 14-05-03 Second Injury and Enhancement Fund (SIEF)
The WSIB’s policy for applying 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 fund.
Both physical and psychological disabilities are included.
In determining cost relief, consideration is given to the medical significance of the pre-existing condition and the severity of the accident.
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
Severity of Accident
The worker was employed as a plumber with the employer. He began his employment with them on April 1, 2013. On October 21, 2013, at 26 years of age, he was struck on the left knee by a heat pump that weighed 110 pounds.
The case manager determined that based on the accident mechanics, the accident history was of moderate severity.
I note the employer representative provided a detailed submission with the Intent to Object form dated July 21, 2014 objecting to the denial of SIEF cost relief. It is the representative’s view that the injury sustained by the worker is an injury, "that one can reasonably deduce to be of a moderate severity, due to the weight of the heat pump."
The severity of the accident is evaluated in terms of the accident history and approved definitions. Factors to be considered are the mechanics (lift, push, pull, fall, blow, etc.), positioning (kneeling, standing, sitting, squatting, bending, etc.), and the environment (lighting, temperature, weather conditions, terrain, etc.).
The severity of the accident is defined as follows:
Minor: Expected to cause non-disabling or minor disabling injury;
Moderate: Expected to cause disabling injury;
Major: Expected to cause serious disability, probable Permanent Impairment disability.
The accident history accepted and reported by the worker is confirmed, as outlined in the employer's Form 7 (Employer's Report of Accident). I find that the accident is categorized as moderate in severity. Based on my assessment of this information as explained above, the accident as described would be expected to cause a disabling injury. I concur with both the employer representative and the case manager on this issue. The severity of the accident is evaluated in terms of the accident history and approved definitions. In this case, I concur that the accident as described, was moderate in nature and expected to cause a disabling injury.
Significance of Pre-existing Condition:
The employer representative argues that the worker's popliteus tendonitis of the left knee, along with his thalassemia condition, improper posture/body mechanics and heavyset nature, represent a moderate medical pre-existing condition, and that these issues have contributed to delaying the worker’s recovery from the left knee contusion by three months.
WSIB Operational Policy 14-05-03 states in part, the following:
"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 healthcare costs may be transferred from the accident employer in Schedule 1 to the SIEF".
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 asymptomatic condition, which only becomes manifest post-accident.
It is also the Board's position that under certain conditions, the effects of a co-existing condition would be grounds to grant relief under SIEF.
The first criterion which would have to be satisfied is that the co-existing condition predates the accident. Secondly, the coexisting condition must have enhanced, or prolonged the disability. Furthermore, there is no requirement the pre-existing condition be in the same anatomical area of the body as the compensable injury.
Based on the available documentation, there is no evidence of a pre-accident disability, or pre-existing underlying or asymptomatic condition that resulted in the worker being more likely to develop an impairment of greater severity than what was expected for this type of injury. The type of injury that followed the October 21, 2013, accident is consistent with the mechanics of the accident.
The file is absent of any evidence that an underlying or co-existing condition impacted on the worker's recovery/progress following the work incident of October 21, 2013.
The medical literature contained within the case record, does not show that the worker suffered from a pre-existing condition that prolonged or enhanced his recovery. There is no evidence the worker in the past, required medical attention to the extent of requiring treatment, or that a prior left knee condition disrupted his employment.
There is no indication or suggestion on the part of the attending healthcare professionals, that the worker's recovery, as related to the left knee was prolonged or that there was an underlying condition which impacted on the treatment process/recovery or contributed to the work accident.
I note the worker received Loss of Earnings benefits from October 22 to October 24, 2013, October 28 to October 29, 2013, November 25 to November 26, 2013 and from December 16 to December 17, 2013. Treatment in the form of Chiropractic was approved from October 29, 2013 to January 20, 2014. There is no record of any prior related claims. I note the worker has reported no prior left knee injuries. Similarly, the employer reports that there were no prior similar or related left knee problems to their knowledge, nor any injuries or conditions or factors that may have delayed the worker's recovery when this claim was initially established.
I also note the worker re-injured his left knee at work, on November 21, 2013. The employer had made the suggestion that the October 21, 2013 work accident be considered a pre-existing knee issue for the incident of November 21, 2013. There is no evidence of a pre-existing condition, based on these details, but only that a recurrence of a work-related injury occurred. The SIEF Policy is not applicable on this issue.
Reference made by the employer representative to the popliteus tendonitis has been accepted and included in the scope of entitlement in this claim. Therefore, one cannot argue that this be considered as a pre-existing condition for SIEF purposes, as entitlement has been accepted for the condition. Further, the reference to the thalassemia condition where the employer argued that this makes the worker fatigued and therefore, that he could not participate fully in physiotherapy; although noted, there is no medical documentation or medical evidence to support this condition impacted the recovery in his claim. Further, the argument regarding improper posture/body mechanics are not medical pre-existing conditions that can be considered for the SIEF purpose.
There is no indication or suggestion on the part of the attending healthcare professionals and specifically, those who assessed the worker at the Regional Evaluation Centre and most recently, when the worker was assessed at the Knee and Hip Specialty Clinic suggesting that the worker's recovery, as related to the work injury was prolonged, or that there was an underlying condition which impacted on the treatment process/recovery or contributed to the work accident.
CONCLUSION
The employer's objection is denied. There is no basis for SIEF cost relief.
Dated July 13, 2015 at Toronto, Ontario
F Bruno
Appeals Resolution Officer
Appeals Services Division