WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20180039
OBJECTING PARTY: Employer
REPRESENTED by: Employer Representative
RESPONDENT: Worker
REPRESENTED by: XXXXXX
HEARING: Hearing in Writing
HEARD by: S. Di Carlo, Appeals Resolution Officer
DATED: July 23, 2018
ISSUE
The employer through their representative is objecting to the Case Manager’s (CM) decision dated January 11, 2018, which denied entitlement to Second Injury and Enhancement Fund (SIEF) cost relief.
BACKGROUND
On October 30, 2015 this now 50-year-old, truck driver was securing a load of steel on a flatbed trailer when a pipe slipped off the handle of the binder causing the worker to hyper-extend his right elbow and causing him to fall to the ground and twist his back.
Entitlement was accepted for a low back strain and right epicondylitis. The worker received loss of earnings (LOE) benefits as his employer could not accommodate his restrictions. The CM determined the worker’s back strain fully recovered in November 2015 and the worker made slow progress for his right epicondylitis, and was referred to the Workplace Safety and Insurance Board (WSIB) Shoulder and Elbow Specialty Clinic in January 2016.
In March 2016, the worker participated in a Work Transition (WT) plan for a suitable occupation (SO) of production clerk. The worker continued with conservative treatment and in April 2016 the worker underwent non-compensable back surgery. The WT plan was placed on hold and LOE benefits were paid for four (4) weeks by policy and then stopped until the worker was fit to participate in his WT plan again. In June 2016 the worker returned to his WT program.
The worker reached maximum medical recovery on August 24, 2016, with permanent restrictions for his right epicondylitis. The worker received a 1% Non-Economic Loss (NEL) award in April 2017 for his right epicondylitis permanent impairment.
The employer requested SIEF cost relief on September 8, 2016. The CM denied entitlement to SIEF cost relief in the decision dated January 11, 2018, as there was no evidence that a pre-existing condition had caused or contributed to the injury, enhanced or prolonged the claim.
The employer representative’s objection forms the basis of this appeal.
Date of Case Manager Decision: January 11, 2018
Case Manager’s Conclusion: No entitlement to SIEF cost relief
AUTHORITY
Operational Policy:
14-05-03 Second Injury and Enhancement Fund (SIEF)
15-06-08 Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances
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 and relevant operational policy in reaching this decision. I conclude the employer is not entitled to SIEF cost relief, as I am not persuaded that a pre-existing condition caused or contributed to the injury or that the injury was prolonged or enhanced due to the pre-existing condition.
On the Appeal Readiness Form (ARF) dated May 30, 2018, the employer contends that SIEF cost relief should be granted in this case. The employer representative disagreed with the CM’s determination of the accident severity being considerate moderate in severity. The employer representative argued the description on file is not clear and relates to the worker tightening binders with a pipe when it slipped causing him to hyper-extend his right elbow.
The representative maintains it is unclear when or how the worker fell and notes the Shoulder and Elbow Specialty Clinic report of January 2016 does not refer to a fall and outlines “…he was securing chains on his load, using a pipe for leverage. The pipe gave way as he was pushing down forcefully, so his arm was forced into an extended position rapidly…” The employer representative maintains the accident severity should be considered a minor and not moderate in severity.
The worker is not participating in this appeal.
Severity of Accident
The Employer’s Report of Injury (Form 7) dated November 4, 2015, indicated the worker was securing a load of steel on a flatbed trailer. He was tightening up binders on chains using an extension pipe. When he went from pulling to pushing on the pipe it slipped off the handle of the binder and hyperextended his right elbow. He then fell and twisted his back.
The Worker’s Report of Injury (Form 6) dated November 25, 2015, outlined the worker was attempting to tighten chains on a load and used a pipe for leverage. The pipe slid off causing him to snap his arms forward all the way, and he fell.
Memo two (2) documented the mechanism of injury as the worker was transporting steel and securing it down with chains and binders. The worker had to pull down on a handle in the middle to clamp the sides together. He used an extension bar, (a pipe), to reach above his head and pull it down as he gets closer. The worker goes from pushing to pulling and the handle slipped and his arm hyper-extended causing pain to his right elbow and he fell and twisted his lower back.
In considering the employer’s SIEF request, I have regard for Operational Policy 14-05-03 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 impairment disability
In determining the severity of the accident, the WSIB evaluates the accident history. Factors to be considered include the mechanics (lift, push, pull, fall, blow, etc.); positioning (kneeling, standing, sitting, squatting, bending, etc.) and the environment (lighting, temperature, weather conditions, terrain, etc.).
Although there are references within the policy on SIEF relief to mechanics, position and environment, the policy itself does not make it clear how these factors are weighed in the determination of accident severity.
The CM determined in memo xxxxx the accident history was of moderate severity as the process of the pipe slipping off and the worker hyper-extending his right arm, which caused him to fall and twist his back, would cause a disabling injury.
Having consideration for the mechanics of the injury and the positioning of the worker’s body, I am not in agreement with the employer representative’s determination of accident severity. I find that the accident is of moderate severity.
When looking at accident severity the actual injuries are not considered but rather the extent of disability the accident would reasonably be expected to cause. An average worker would, in my view, would be expected to suffer a disabling injury based on the positioning of the worker’s body and the significant amount of force used in an attempt to tighten the load.
Also the added element in this case, of the pipe slipping would require an awkward stance of the worker’s body position, and caused him to hyperextend his right elbow. Noting the worker fell to the ground a reasonable amount of force was being exhibited by the worker.
Accordingly, I rate the severity of the accident as moderate.
Significance of Pre-existing Condition:
For SIEF cost relief to be granted two (2) factual elements must be determined: the severity of the accident and the medical significance of a pre-existing condition and whether it contributed to the work-related accident, or prolonged or enhanced the worker’s disability. Concerning the pre-existing condition, the policy provides that an employer may be entitled to SIEF cost relief if it can be established that 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.
The employer requests the application of 75% to 90% SIEF cost relief should be granted given the worker’s pre-accident physical, and emotional disabilities, and limitations that rendered him highly vulnerable to injury, and prolonged recovery of the worker’s claim.
In this case, entitlement has been accepted for a resolved low back strain and right side epicondylitis.
In considering SIEF cost relief, I find the employer bears the significant load of establishing, on a balance of probabilities, that there was a pre-existing condition that caused the accident, enhanced or prolonged the worker’s recovery. Medical evidence is necessary to establish that the worker’s condition was prolonged or enhanced by a pre-existing condition.
Policy 14-05-03 outlines that the medical significance of a condition is assessed regarding the extent that it makes the worker liable to develop a disability of a greater significance 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 produce periods of disability in the past requiring treatment and disrupting employment.
The employer’s representative provided the following evidence in support of the request for entitlement to SIEF cost relief:
The worker began suffering from low back pain before the injury for at least six (6) months and underwent an MRI four (4) months before the date of injury which confirmed anL5-S1 disc herniation with nerve root compression
Surgery was recommended by August 2015; however, the worker chose to postpone the surgery as he recently started a new job
In December 2015 and EMG confirmed nerve root disruption by the herniated disc
In my review of the file documentation, I note evidence of prior back complaints is evident further to the medical documentation and clinical notes; however, this case was accepted on its merit for a low back strain which resolved within one (1) month further to the Health Professional’s Progress Report (Form 26) dated November 25, 2015, which confirmed the worker’s “back is back to baseline.”
On this basis, the worker’s back strain was not enhanced or prolonged by his prior disc herniation. Also, I was not referred to any evidence to support the worker’s back condition prolonged the recovery of the worker’s right elbow.
The employer representative referenced the Nurse Consultant’s (NC) memo xx, which acknowledged a recovery delay and initiated a referral to the Specialty Clinic that subsequently resulted in the right elbow condition becoming a chronic condition supported by permanent impairment and a lengthy and costly retraining through work reintegration.
With respect to the employer’s position of the worker’s lengthy and costly WT plan, I find the WT plan was a result of the employer’s inability to accommodate the worker’s restrictions from early on in the claim which was confirmed by the Return to Work Specialist (RTWS) meeting of November 8, 2015.
In this case, the worker did undergo non-compensable back surgery in April 2016 and the employer representative argued as a result of the surgery the worker was not able to participate in work transition and was not able to undergo the necessary physiotherapy for his elbow condition as outlined in memo xx. I note, LOE benefits were paid for four (4) weeks in accordance with policy 15-06-08 and the WT plan was placed on hold until the worker was medically cleared to return to his WT plan following his non-compensable surgery. With respect to the employer representative’s position that the worker was not able to participate in therapy for his elbow, I refer to Dr. Smith’s comments in the July 13, 2016, WSIB Shoulder and Elbow Specialty Program report which stipulated “since his last visit in April 2016, he had low back surgery, which forced a hiatus in his physiotherapy. The enforced rest; however, has allowed him some improvements over the last few months.”
As such, I find treatment wait times complications resulting from other medical conditions, and administrative delays are not pre-existing conditions that warrant SIEF cost relief.
The employer representative argued further to memo xx, the CM cautioned the worker about his smoking habits because they would impede his recovery from surgery and smoking is a pre-existing condition that would further delay recovery.
Policy 14-05-03 defines a pre-existing condition 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 my view, smoking is not a pre-existing condition based on policy’s definition.
The employer representative referenced in his submission that worker’s WT plan was impacted by a diagnosis of pre-existing “attention deficit hyperactivity disorder” (ADHD) as confirmed by the Psycho-Vocational assessment of August 29, 2016. The diagnosis of “ADHD” is neither a pre-accident disability nor a pre-existing condition as defined by policy and therefore cannot be viewed as a condition or disability that would prolong or enhance the recovery in this claim.
Lastly, the employer representative reference there is evidence of prolonged psychological barriers as described as an obstacle to the WT plan further the CM’s memo A0003. The employer representative argued while there is minimal evidence in assessing the pre-accident psychological conditions and suggests a lower threshold based on policy 14-05-03 which states:
With psychological conditions, the possibility of prior psychic trauma resulting from life experience could be considered as evidence of vulnerability, and justify recommending relief to the employer, even in the absence of pre-existing psychological impairment.
In support of his position, the employer representative referenced a Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision to support a lesser evidentiary standard for application of SIEF cost relief. I considered the WSIAT Decision xxx/xx; yet, I am not bound by the conclusions reached as it relates to the case before me.
While I acknowledge the worker was treated with medication for depression further to the family doctor’s April 8, 2016, clinical note, I am not persuaded the worker’s psychological condition prolonged or enhanced the claim costs. In this case, the worker was offered psychological counselling further to memo xx in support of his WT plan; however, further to memo xx, the worker declined any sponsored psychological services via WSIB. While the employer representative references the May 28, 2014, clinical note is indicative of psychological issues, I am not persuaded that a pre-existing psychological condition has impacted the worker’s recovery of his right arm epicondylitis.
In summary, it is not sufficient to identify that a worker has pre-existing conditions, which might contribute to the development of a compensable condition. It must be shown on a balance of probabilities that a pre-existing condition more likely than not contributed to the development of the worker’s compensable condition. Similarly, it is not sufficient that the pre-existing condition might enhance or prolong the worker’s disability. It must be shown, on a balance of probabilities, that the condition enhanced or prolonged the worker’s disability.
In reviewing the evidence on file, I find there is no indication or suggestion on the part of the treating healthcare professionals, that the worker’s recovery was prolonged or that there was an underlying condition which impacted the treatment process or contributed to the work accident. Noting the worker’s treating healthcare professionals did not identify a prolonged recovery, I accept that there is no evidence that a pre-existing condition enhanced the work-related disability or prolonged the worker’s recovery.
Therefore, after carefully considering all the facts of this case, I find that the accident was moderate in severity and that there is no pre-existing condition that would have caused or enhanced the work injury or the worker’s recovery. The employer’s request for SIEF relief is denied.
CONCLUSION
There is no basis for SIEF cost relief. The employer’s objection is denied.
July 23, 2018
S. Di Carlo
Appeals Resolution Officer
Appeals Services