WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision number: 20172027
OBJECTING PARTY: Employer
REPRESENTED by: Representative
RESPONDENT: Worker
REPRESENTED BY: Representative
Decision Date: June 14, 2017 Hearing in Writing
HEARD by: S. Johnson, Appeals Resolution Officer
ISSUE
Second Injury and Enhancement Fund (SIEF)
BACKGROUND
On March 19, 2012 this then 41 year old production worker tripped over a box at work and jolted her lower back region. The Operating Area allowed entitlement to a lower back strain injury arising from the work accident of March 19, 2012. The worker was performing modified work duties to accommodate a lower back injury arising from a prior work accident that occurred at work on January 24, 2012 and filed under claim number XXXXXXXX.
The worker went on to claim entitlement to lower back surgery for an L5 grade 1 anterolisthesis and left lateral protrusion compressing the L5 nerve root. The Operating Area denied entitlement to this surgical procedure as it was concluded that it was not the responsibility of this claim and directly attributable to a pre-existing condition. Entitlement in this worker’s claim was limited to the payment of partial loss of earnings (LOE) benefits from May 21, 2012 to June 11, 2012 based on a graduated structured return to work plan to accommodate the worker’s lower back strain injury. Effective June 11, 2012 the Operating Area concluded that the worker fully recovered from her work-related lower back strain injury arising from the work accident of March 19, 2012.
In the Appeals Resolution Officer’s (ARO) decision dated October 19, 2016 it was concluded that the work accident of March 19, 2012 was not sufficiently traumatic to be compatible with an aggravation of the worker’s underlying lumbar spine condition. On this basis, the ARO found that entitlement to the worker’s lumbar spine surgery was not in order as an aggravation of the work accident of March 19, 2012 and that the work accident of March 19, 2012 did not exacerbate or accelerate the worker’s pre-existing L5-S1 left posterolateral disc herniation.
In a letter dated August 24, 2015 the employer representative requested entitlement to SIEF relief.
Date of Case Manager Decision: January 19, 2016
Case Manager’s Conclusion: In the Case Manager’s (CM) decision letter dated January 19, 2016 SIEF relief was denied as it was concluded that this claim was allowed on its own merits for the worker’s lower back strain injury arising from the work accident of March 19, 2012, the work accident was not caused by a pre-existing condition and that the worker’s recovery from her lower back strain injury was not prolonged or enhanced due to a pre-existing condition.
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.
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
On March 19, 2012 this then 41 year old production worker tripped over a box at work and jolted her lower back region.
I had regard for the Operational Policy Manual (OPM) Document No. 14-05-03 – “Second Injury and Enhancement Fund (SIEF)” – that sets out the severity of the accident and approved definitions 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 disability
In the Appeal Readiness Form dated March 9, 2017 the employer representative submits that the accident history of March 19, 2012 is minor in severity for SIEF rating purposes. In support of this finding the employer representative relied upon several factors that included: the worker stumbled on a box located on the ground, she did not fall to the ground and that she was able to re-steady herself by grabbing onto a nearby table. There was no significant height involved at the time of the index incident of March 19, 2012.
I observe that the employer representative advanced an argument regarding the classification of the accident history of January 24, 2012 filed under the worker’s prior claim number XXXXXXXX for SIEF rating purposes. This issue in dispute under the worker’s prior claim number XXXXXXXX is not properly before me and will not be considered in this review. The only issue properly before me is the objection to the CM’s decision letter dated January 19, 2016 that denied SIEF relief in claim number XXXXXXXX.
I considered the components of the accident history of March 19, 2012. I find that the accident is minor in severity for SIEF rating purposes based on the worker’s body position, mechanics and environment at the time that she stumbled at work on March 19, 2012. In reaching this finding I relied upon the worker’s evidence. In a telephone conversation with the Eligibility Adjudicator (EA) on April 16, 2012 (Memo 2) the worker described that she tripped over a box on the floor, she stumbled and she twisted her back. In response to this event she grabbed onto the co-worker’s table to steady herself. She confirmed that she did not fall to the ground.
I also considered the ARO’s findings detailed in the decision dated October 19, 2016. In this decision the ARO found that “the accident of March 19, 2012 did not involve a high-energy injury such as a spinal burst fracture or dislocation. I have also considered that the
March 19, 2012 accident is not related to a fall from a significant height” (page 5[7]).
I am persuaded that there were no additional perils of risk at the time that the worker stumbled over a box at work on March 19, 2012.
On this basis, I am satisfied that the mechanism of injury, as described, is expected to cause non-disabling or minor disabling injury.
I am not persuaded that a pre-existing condition caused or contributed to the accident.
Significance of Pre-existing Condition:
I had regard for the OPM Document No. 14-05-03 – “Second Injury and Enhancement Fund” – that sets out the medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. In this policy, a pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest after the work-related accident. A pre-accident disability is defined as a condition that has produced periods of disability in the past requiring treatment and disrupting employment.
In the Appeal Readiness Form dated March 9, 2017 the employer representative petitioned that there is evidence of a pre-existing condition that appears to be rather substantial. In reaching this finding the employer representative relied upon the ARO’s decision dated October 19, 2016 that denied entitlement to the worker’s lumbar spine surgery under this claim number XXXXXXXX as an aggravation of a pre-existing non-work related condition. The employer representative detailed with particularity a chronological summary of the medical evidence submitted to this worker’s case during the continuity period from January 25, 2012 to June 21, 2012.
It was put forth that the worker’s pre-existing L5-S1 far left disc protrusion and spondylolisthesis contributed significantly to the worker’s lower back strain injury arising from the index incident of March 19, 2012. On this basis it was put forth that the worker’s recovery was prolonged due to a significant pre-existing underlying condition and that the usual healing time period was exceeded to warrant entitlement to SIEF relief.
There is no dispute that this worker has a pre-existing condition. The history of this condition is adequately documented in the case record and succinctly summarized in the employer representative’s submission dated March 9, 2017. The issue before me is whether this pre-existing condition made the worker liable to develop a disability of greater severity than the normal person.
I find that there is little evidence to suggest that the worker’s pre-existing condition impacted her recovery from her work-related lower back strain injury arising from the work accident of
March 19, 2012. In reaching this finding I relied upon the medical evidence. I observe that on April 30, 2012 (Memo 6) the worker was approved for the Program of Care (POC) for her work-related lower back strain injury for approximately eight weeks commencing April 30, 2012. I accept the employer representative’s position that the typical recovery time for a low back strain injury is approximately six to eight weeks. This worker received entitlement to health care treatments for the standard healing time period that commenced on April 30, 2012 and ceased effective June 12, 2012.
This worker was injured due to the specific chance event happening at work on
March 19, 2012. There is little medical evidence to suggest that the worker’s lower back strain injury was not compatible with the accident history of March 19, 2012. In support of this finding I relied upon the CM’s decision letter dated December 2, 2015 that concluded entitlement was allowed for a lower back strain injury and an eight week course of physiotherapy treatments.
I find on a balance of probabilities that the recovery and claims period was not enhanced or prolonged due to a pre-existing condition.
CONCLUSION
I conclude that there is no pre-existing condition of medical significance that caused or contributed to the work accident of March 19, 2012 or prolonged or enhanced the worker’s period of recovery from her work-related lower back strain injury. I confirm the denial of SIEF relief.
The employer’s objection is denied.
DATED June 14, 2017
S. Johnson
Appeals Resolution Officer
Appeals Services Division