WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20180012
OBJECTING PARTY: Employer
REPRESENTED BY: Paralegal
RESPONDENT: Worker (not participating)
HEARING: Hearing in Writing
HEARD BY: K. MacMillan, Appeals Resolution Officer
DATE: March 29, 2018
ISSUE
Second Injury and Enhancement Fund (SIEF)
BACKGROUND
On January 22, 2016, this then-47 year old hairstylist moved four boxes each weighing approximately 50 lbs while in the course of employment. The worker experienced immediately low back pain as she stood up from a crouched position as she was attempting to lift the fifth box. The worker was diagnosed with a subluxed right sacroiliac joint on January 28, 2016. Operations granted initial entitlement to health care benefits for a low back soft tissue sprain/strain injury.
Date of Case Manager Decision: September 28, 2017
Case Manager’s Conclusion
The Case Manager denied entitlement to SIEF based on the determination that there is no evidence that a pre-existing condition either caused/contributed to the work-related accident or enhanced/prolonged the period of 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.
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 find for the reasons outlined below that entitlement to SIEF is not in order.
In reaching this determination, I have carefully considered all of the available information, legislation and relevant operational policies. I have paid particular attention to the employer representative’s written submissions dated August 31, 2017 and March 2, 2018.
Severity of Accident
I find that the severity of accident is moderate as defined by policy.
Policy 14-05-03 directs decision-makers to consider any applicable accident history components such as mechanics and position. The components of the accident history in this case involve moving boxes weighing approximately 50 lbs in a room described by the worker as being eight foot by eight foot. I note that the case record indicates that the worker had already moved four boxes by herself prior to picking up the fifth box and twisting/turning while holding the box with both arms.
I accept that the lifting and twisting with the fifth 50-pound box in what I would consider to be a fairly small enclosed area would reasonably result in a disabling injury. Policy 14-05-03 outlines that a disabling injury would be expected with a moderate accident. Hence, it is my view that severity of accident is moderate.
Prior Disability
I find that the policy definition of a prior disability is not met. Policy 14-05-03 defines the term pre-accident disability as a condition which disrupted employment and required treatment prior to the accident.
In this case, I find that there is insufficient evidence that a pre-existing disability produced periods of disability in the past requiring either treatment or disrupting the worker’s employment. For example, the employer’s Form 7 dated March 24, 2016 indicates that the worker had been employed as a stylist for 13 years. The Form 7 additionally states that the employer was not aware of any prior similar or related problem, injury or condition. The physician’s Form 8 dated January 28, 2016 similarly indicates that there was no awareness of any prior similar problems. Based on this evidence, I accept that a prior disability is not evident.
I will now turn to the employer representative’s argument that the worker’s recovery has been affected by pre-existing conditions.
Significance of Pre-existing Condition
I accept that there is evidence of a pre-existing condition predating the workplace injury.
Policy 14-05-03 states that a condition’s medical significance is to be considered with respect to how it makes a worker liable to develop a disability of greater severity than a “normal” person. The employer representative submits that the worker’s prior back injury of 2007, health problems secondary to clinical obesity, and underlying degenerative changes prolonged recovery.
Is there evidence of a pre-existing condition?
I have considered the Medical Consultant’s opinion of August 15, 2016 that the MRI findings most likely represent pre-existing degeneration that did not occur as a result of the workplace injury. There is general agreement that the low back MRI of June 29, 2016 identified multilevel degenerative disc changes throughout the lower back. I observe that the MRI indicates that the most pronounced degenerative change is at the lumbar level of L4-5.
Further, as pointed out by the employer representative, the case record contains documentation of back pain subsequent to a motor vehicle accident (MVA) which occurred in 2007. I note the clinical chart note of September 7, 2012 in which the physician documents back pain extending to the big toe which is “worse than previous pain”.
I also acknowledge the employer representative’s argument that the worker was documented as being clinically obese at the time of the work-related injury. A bariatric registry form was completed in 2014 at which time the worker’s body mass index (BMI) was listed as 39. The Regional Evaluation Centre (REC) assessment of April 12, 2016 documents the worker’s BMI as 41 (or very high). The final REC report of April 19, 2016 lists the worker’s high BMI as a non-occupational diagnosis. Accordingly, I accept that there is sufficient clinical evidence of pre-existing conditions.
Has the pre-existing condition enhanced or prolonged the work-related disability?
In my opinion, there is insufficient direct evidence that a pre-existing condition either enhanced or prolonged the work-related disability. The employer representative argues that the worker’s environment alone did not contribute to the injury.
For example, I have considered the presented argument that the medical documentation indicates that the worker suffers from back, leg and foot problems secondary to her body weight. However, I note that the medical chart notes dated November 6, 2013 indicate that the worker carries all of her weight in her legs. The medical chart note of August 20, 2014 confirms that the worker carries the weight in her very large legs and calves. That being said, the medical chart note indicates that the pain is located in the worker’s feet. Additionally, I have considered that the REC documents good lumbar lordosis and a symmetrical pelvis. Thus, I am not persuaded that the worker’s pre-existing body weight was a factor with respect to the work-related disability.
Next, I acknowledge that the worker had a MVA in 2007 which led to back pain. As discussed above, a medical chart note dated September 7, 2012 documents low back pain travelling down the to the worker’s big toe. At the same time, I note that the REC assessment of April 12, 2016 outlines that the worker reported her post-MVA low back pain completely resolved with no recurrence after approximately one year of physiotherapy. The REC confirms that as of the date of assessment there was no evidence of lumbosacral radiculopathy. Moreover, I find that the most recent evidence of pre-existing back pain relates to a medical chart note dated September 7, 2012. Accordingly, I accept that there is insufficient clinical evidence that the pre-existing low back pain enhanced or prolonged the work-related disability.
Finally, I recognize the presence of underlying lumbar degeneration as confirmed within the MRI of June 29, 2016. The REC’s final report of April 19, 2016 outline that x-rays performed on April 12, 2016 show significant narrowing of the disc space between L4 and L5 due degenerative changes. Mild to moderate right sacroiliac joint osteoarthritis was also identified. At the same time, I accept that mild or even moderate sacroiliac joint osteoarthritis would be “normal” for a person of age 47. Consequently, I am not persuaded that the pre-existing low back degeneration (including osteoarthritis) in this specific case is sufficient basis for granting entitlement to SIEF relief.
CONCLUSION
I conclude that the accident severity was moderate.
There is no evidence that a prior disability caused or contributed to the workplace accident.
A pre-existing condition did not enhance or prolong the work-related disability.
Entitlement to Second Injury and Enhancement Fund (SIEF) relief is not in order.
The employer’s objection is denied.
DATED March 29, 2018
K. MacMillan Appeals Resolution Officer Appeals Services Division