WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20150097
Decision Date: January 15, 2015
Objecting Party: Worker (not participating)
Represented by: Worker Representative (not participating)
Respondent: Employer
Represented by: Employer Representative
Hearing: Hearing in Writing
Heard by: K. Hall, Appeals Resolution Officer
ISSUE
The employer has objected to the denial of cost relief under the Second Injury and Enhancement Fund (SIEF).
The relevant decision is confirmed in the letter dated September 19, 2011.
BACKGROUND
On August 30, 2010 this then 57 year old mold maker caught his right foot on a shipping band from a pallet and tripped, hurting his lower right calf. The worker reported the incident and sought medical attention the following day. The case was initially allowed for a right calf strain.
On September 27, 2010 it appears the case manager (CM) extended the initial entitlement to include a right knee strain as documented in the case record as Memo 4.
The worker’s right calf strain resolved; however, he continued to have ongoing problems with the right knee.
February 28, 2011 the worker underwent an arthroscopy. The post-operative diagnosis included a small posterior horn tear, medial meniscus; grade III lateral tibial condyle and grade IV trochlea.
The CM extended the worker’s entitlement to include the medial meniscus tear on the basis the work accident aggravated a moderate pre-existing condition of the right knee which resulted in a medial meniscus tear.
The CM denied a request for secondary entitlement for a right hip and low back impairment. As well, the CM concluded the worker had recovered from the work related impairment as of August 28, 2011 without a permanent impairment. Any ongoing problems with the right knee were considered related to the pre-existing osteoarthritic changes in the knee which were not accepted as part of the worker’s entitlement under the claim. The decisions were confirmed in the letter dated August 24, 2011.
In September 2011 the case was reviewed for the employer’s request of cost relief. The CM reviewing the issue concluded the worker had recovered within the expected time frames for the surgery related to his work injury. The CM also concluded the evidence did not support that the pre-existing condition enhanced the injury or impacted the recovery period. Therefore, entitlement to cost relief under the SIEF policy was denied.
The employer objected to the decision, the issue is now before the Appeals Services Division for consideration.
AUTHORITY
Operational Policy:
14-05-03 Second Injury and Enhancement Fund
ANALYSIS
I have reviewed the record and considered the matter. I find the level of degenerative changes identified during the February 28, 2011 arthroscopy is more wear and tear than what would be expected for a person his age.
I also find it more likely than not that the worker’s underlying degenerative changes and diabetes prolonged the recovery period.
The diabetes in combination with the Grade III and Grade IV changes in my opinion would support a pre-existing condition of a moderate category. An accident history of a trip, without a fall, at ground level, I would consider to be minor. In this case, noting the minor accident history and a moderate pre-existing condition cost relief at 75% is granted.
In reaching my decision I found the following evidence to be of significance:
The employer representative has argued whether the worker should have initial entitlement for a right knee injury; however, the issues of entitlement are not part of the current appeal and therefore, are not within my jurisdiction.
The worker’s entitlement to the medial tear was on the basis the pre-existing condition was aggravated by the trip to the extent it resulted in the tear.
The medical opinion contained in the case record indicated an expected recovery time of 3-6 months for a meniscal tear repair. However, I note the tear is described as a small tear which would suggest a recovery time of closer to the 3 months. The worker’s recovery based on the CM decision was 6 months in duration which, in my lay perspective, supports the pre-existing condition prolonged the recovery period.
Significance of the pre-existing condition
The worker was 57 years old at the time of the incident and therefore, I would anticipate some degenerative changes in the knees.
In weighing the classifications provided in the operative report, I referenced the Outerbridge Grade Classification which is made from arthroscopic appearance rather than x-ray findings.
Grade 0 = Normal Grade I: Softening and swelling of the articular cartilage Grade II: Partial thickness fissures Grade III: Full thickness fissures Grade IV: Bone exposed
The worker had Grade III and Grade IV changes noted which, in my view, would be higher than the average 57 year old. In addition, post operatively the specialist noted the arthritic changes were the primary problem. Although the medical evidence does not provide an opinion as to whether these changes would be considered minor, moderate or major from a medical perspective this does not prevent me from determining the medical significance as related to the SIEF policy.
In this case, I would conclude, the degenerative changes and the diabetes would place the worker at higher than a minor or, slightly more level to develop a disability of greater severity than a normal person; however, below a major, or extremely liable to develop a disability of greater severity than a normal person. Therefore, I have concluded the medical significance of the pre-existing condition is considered moderate.
Severity of accident history
The accepted accident history was a trip without a fall which I would not expect to cause anything beyond a non-disabling or minor disabling injury. In accordance with policy, I would place the accident history in the minor category.
Quantum of SIEF
I have found that the accident severity is minor and the significance of the pre-accident condition was moderate. In these circumstances, policy provides for cost relief at 75%.
CONCLUSION
I conclude the employer has entitlement to cost relief under the SIEF policy at 75%.
The objection is allowed.
DATED January 15, 2015
K. Hall
Appeals Resolution Officer
Appeals Services Division