WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20180050
OBJECTING PARTY: Employer
REPRESENTED by: Paralegal
RESPONDENT: Worker (Not Participating)
HEARING: Hearing in Writing
HEARD by: S. Johnson, Appeals Resolution Officer
DATE: August 13, 2018
ISSUE
Second Injury and Enhancement Fund (SIEF)
BACKGROUND
On November 13, 2015 this operations manager reported to her employer with complaints of a gradual onset of right elbow, right forearm and right shoulder pain that she attributed to a significant increase in computer work tasks in early September 2015.
The worker received first medical treatment on December 1, 2015. In the Health Professional’s Report (Form 8) dated December 1, 2015 the physician diagnosed the worker with a right elbow repetitive strain injury and right medial epicondylitis.
The Operating Area allowed initial entitlement to the diagnosis of a right medial epicondylitis injury with ulnar neuritis. The worker did not initially lose time from work following the original date of onset/disablement recorded as November 13, 2015. She continued to perform her regular work duties with self-modifications.
The worker’s symptoms did not significantly improve with modified work duties and physiotherapy treatments. She was referred to the WSIB’s Specialty Clinic and the Function and Pain Program (FPP) to assist with her overall recovery and return to work outcomes
In the Non-Economic Loss (NEL) Evaluation report dated June 13, 2016 a 1 per cent NEL benefit was granted that recognized the permanent impairment in the worker’s work-related right elbow region. The accepted diagnosis for NEL rating purposes was a right medial epicondylitis injury with ulnar neuritis.
In a letter dated December 12, 2017 the employer representative requested entitlement to SIEF relief.
Date of Case Manager Decision: March 29, 2018
Case Manager’s Conclusion: In the Case Manager’s (CM) decision letter dated March 29, 2018 50 per cent SIEF relief was allowed based on a moderate accident history and a moderate 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
I find the onset/disablement history of November 13, 2015 is minor in severity for SIEF rating purposes.
The Operational Policy Manual (OPM) Document No. 14-05-03 – Second Injury and Enhancement Fund (SIEF) – sets out the 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
This policy goes on to describe the accident history components as follows:
Mechanics (lift, push, pull, fall, blow, etc.)
Position (kneeling, standing, sitting, squatting, bending, etc.)
Environment (lighting, temperature, weather conditions, terrain, etc.)
In the Intent to Object (ITO) form dated May 5, 2018 and in the Appeal Readiness Form (ARF) dated July 11, 2018 the employer representative had no additional information to submit and relied upon the previous submission dated April 5, 2018.
In the submission dated April 5, 2018 the employer representative contends the accident history of November 13, 2015 is minor in severity for SIEF rating purposes for the following reasons:
The physical demands of the worker’s workload are not significant enough to classify the accident history as moderate in severity for SIEF rating purposes.
This is an experienced worker who has been exposed to the physical demands of her preinjury job over a significant period of time.
This worker has been exposed to the seasonal shifts in computer demands and she did not come into work each day expecting to experience a disabling injury.
I agree with the employer representative’s position the onset/disablement history of November 13, 2015 is minor in severity. In reaching this finding I considered the worker’s body position, mechanics and work environment at the time she reported to her employer with complaints of right elbow, right forearm and right shoulder pain at work on November 13, 2015. In a telephone conversation with the Eligibility Adjudicator (EA) on December 4, 2015 (Memo 6) the worker described the following:
The computer work involves moving from the keyboard to the paper on her desk to check off items on a spreadsheet.
She uses her right hand to check off the items on the spreadsheet.
She moves her right arm back and forth from the keyboard to the spreadsheet.
Other tasks include telephone calls, responding to e-mails, invoicing, filing, photocopying and using the two-way radio to answer calls from bus drivers.
The computer work represents approximately seven hours each day, and non-computer tasks represent approximately one hour each day (telephone and radio).
There was an increase in computer work tasks in September and October as this is the start of the school year and there are more reports to complete that translated into an increase in computer work duties and tasks.
I considered the components of the onset/disablement history of November 13, 2015. I find the accident is minor in severity for SIEF rating purposes based on the worker’s body position, mechanics and environment at the time she reported to her employer with complaints of a gradual onset of right elbow, right forearm and right shoulder pain at work on November 13, 2015.
I accept the employer representative’s position the work duties performed by the worker would be expected to cause, at most, a minor disabling injury especially in a worker who was accustomed to performing these clerical activities with this employer since her date of hire on January 23, 2012. I find the activity of performing clerical tasks in a seated position and handling items of paper weight, even on a repetitive basis, would be expected to cause a non-disabling or minor disabling injury at best.
I find the worker would not be expected to sustain a disabling injury from sitting at her desk and using a keyboard, mouse and moving her right arm back and forth from the desk to the computer. There was no direct trauma to the worker’s right elbow and arm region, there was no slip or fall from a significant height, there was no handling of heavy weights over an extended period of time on a continuous uninterrupted basis over the course of a workday. There was also nothing of significance in the worker’s work environment as she is indoors seated at a desk. I am persuaded by the evidence there was nothing unusual in the mechanics of the worker’s activities as this is part of her normal job duties that included the seasonal shifts in workload.
I am not persuaded a pre-existing condition caused or contributed to the worker’s onset of right elbow, right forearm and right shoulder pain at work on November 13, 2015.
On this basis I conclude the onset/disablement history of November 13, 2015 is minor in severity as it is expected to cause non-disabling or minor disabling injury according to the approved definition in the OPM Document No. 14-05-03 – Second Injury and Enhancement Fund (SIEF).
Significance of Pre-existing Condition:
I find the medical significance of the pre-existing condition is moderate in severity for SIEF rating purposes.
I had regard for the OPM Document No. 14-05-03 – Second Injury and Enhancement Fund (SIEF) – 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. The objective of this policy is to provide employers with financial relief when a pre-existing condition enhances or prolongs a work-related disability.
In the submission dated April 5, 2018 the employer representative submits the medical significance of the worker’s pre-existing condition is major in severity for SIEF rating purposes. In support of this position the employer representative relied upon the worker’s prior history of two surgeries to her right side. The employer representative contends if the worker was symptomatic prior to the onset of her work-related condition that was reported on November 13, 2015 then the pre-existing condition ought to be categorized as major in medical significance for SIEF relief.
There is no dispute that the worker has a pre-existing condition. The history of this condition is adequately documented in the case record and summarized below:
In a medical report prepared for the Ministry of Transportation dated April 27, 2015 the physician documented the worker has had remote bilateral deQuervain’s surgery.
In a medical report dated January 5, 2016 the physician documented the worker has a past medical history of neuromas in her forearms and past surgical decompression for bilateral deQuervain’s.
In the WSIB’s Shoulder and Elbow Clinic Comprehensive Assessment Report dated February 19, 2016 the orthopaedic surgeon documented the worker reported a 20 year history of Dupuytren’s Syndrome with bilateral palmar fascia and volar forearm releases.
In the WSIB’s Shoulder and Elbow Clinic Follow-Up Assessment Report dated April 11, 2016 the orthopaedic surgeon concluded that, given the worker’s previous soft tissue releases in the forearm, it is unlikely she would benefit from a medial release and ulnar nerve transposition as there would be a high probability of ulnar nerve entrapment at the elbow and potentially a double crush phenomenon because of scar tissue previously formed by her previous soft tissue releases in the distal aspect of her right forearm.
I find the medical significance of the worker’s pre-existing history of right forearm problems is not major in severity according to the definitions in the OPM Document No. 14-05-03 – Second Injury and Enhancement Fund – as it did not make her extremely liable to develop a disability of greater severity than a normal person. In reaching this finding I had regard for the following evidence:
In the right elbow ultrasound report dated January 20, 2016 it was observed there was no joint effusion, the tendons were intact and the ulnar nerve was unremarkable.
In the right elbow x-ray report dated February 12, 2016 it was observed there was no joint effusion and no fractures noted.
In the EMG report dated April 26, 2016 it was observed the medial and ulnar nerve digit branches were normal bilaterally. In this report the specialist concluded there was no neurological etiology to explain the worker’s predominant complaints of pain and recommended a bone scan.
In the total body bone scan report dated May 2, 2016 it was observed there was no evidence for fracture or active inflammatory changes in both elbows, the radius and ulna were normal and there were no abnormalities in the carpal bones, metacarpals or phalanges.
In the EMG follow-up report dated May 6, 2016 the specialist concluded the results of the bone scan were reassuring with no evidence of any inflammation or trauma involving either the right or the left elbow. The specialist felt the worker’s symptoms are mechanical in origin and an active stretching/strengthening exercise program recommended.
Despite the normal findings in the worker’s right elbow region documented in the above several diagnostic studies, I prefer the orthopaedic surgeon’s medical opinions expressed in the report dated April 11, 2016 that concluded medial release and ulnar nerve transposition surgery could not be performed to assist with the worker’s recovery from her work-related right medial epicondylitis with ulnar neuritis injury due to the significant scar tissue formed from her previous soft tissue releases in the distal aspect of her right forearm. I am persuaded by this evidence that but for the pre-existing condition and scar tissue, the worker’s recovery from her work-related right medial lateral epicondylitis with ulnar neuritis was impacted and prevented the opportunity for her to be a surgical candidate for release.
The orthopaedic surgeon is a medical expert with specialized training in the assessment, evaluation and treatment of upper extremity injuries. He had the opportunity to conduct an in-person interview with the worker, complete a physical examination of her right elbow and forearm regions, record the clinical findings and document her complaints. The orthopaedic surgeon expressed a medical opinion regarding the significance of the worker’s scar tissue formation arising from her pre-existing surgeries that has posed a barrier in her treatment options from her work-related right medial lateral epicondylitis with ulnar neuritis injury.
I had regard for the worker’s period of recovery following the initial onset of her work-related right medial epicondylitis with ulnar neuritis injury dating back to November 13, 2015. In the Musculoskeletal Program of Care (MSKPOC) Initial Assessment Report dated December 10, 2015 the physiotherapist estimated this worker’s length of care would be approximately eight weeks. This did not happen. This worker’s treatment and recovery plans extended well-beyond the anticipated recommended period of treatment and recovery to include referral and assessment at the WSIB’s Shoulder and Elbow Clinic and participation in FPP.
I find the medical significance of the worker’s pre-existing condition is moderate in severity for SIEF rating purposes as it made her more than slightly liable to develop a disability of greater severity than a normal person.
CONCLUSION
I conclude entitlement to 75 per cent SIEF relief is allowed based on a minor accident history and a moderate pre-existing condition.
The employer’s objection is allowed.
DATED August 13, 2018
S. Johnson
Appeals Resolution Officer
Appeals Services Division