Employer v. Worker, 2022 CanLII 33319

20220035

REPRESENTED by:

HEARD by:

Dated: March 10, 2022

ISSUE

The employer objects to the Case Manager (CM) decision dated December 22, 2020, that allowed cost relief of 50% under the Second Injury and Enhancement Fund (SIEF).

BACKGROUND

On April 13, 2020, this Technician II worker was performing shop duties of facility maintenance with another technician and removing the curtains in the wash bay when they felt a swift, sharp pain in their lower left back while lifting and repositioning the curtains. The curtains were thirty (30) feet high and several hundred pounds in weight. Entitlement was allowed for a low back sprain/strain and left hip strain.

On December 10, 2020, a CM determined that the worker had reached Maximum Medical Recovery (MMR) without a Permanent Impairment (PI) as of August 7, 2020. The CM determined that the worker had a pre-existing lower back impairment that was exacerbated by the injury but that the exacerbation had ceased.

The employer’s request for cost relief was granted on December 22, 2020. The CM determined that 50% cost relief was in order as the injury was minor in nature and the pre-existing condition was also minor.

The employer objected and sought 90% cost relief under this claim as detailed in their Appeal Readiness Form (ARF) dated August 31, 2021.

On November 2, 2021, a CM reviewed the claim and determined that the accident history was moderate and the pre-existing condition was moderate. As such, while the basis of the decision changed, the quantum of cost relief was maintained at 50%. The employer’s objection to the quantum of cost relief forms the basis of this appeal.

AUTHORITY

Operational Policy Manual

Published

14-05-03 Second Injury and Enhancement Fund (SIEF)

February 20, 2006

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that will be explained; I find the quantum of 50% cost relief under the SIEF is correct.

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.

Employer Position

The employer representative (ER) has provided a submission for my review attached to the ARF dated August 31, 2021. The ER seeks 90% SIEF cost relief, as it is their position that the severity of the accident was minor and the pre-existing condition was major. In regards to the accident severity, the ER argues that there were no reported awkward positional or environmental factors that added peril to the accident. As such, the ER argues that this accident would be expected to cause a non-disabling or minor disabling injury. In regards to the pre-existing condition, the ER stated that the worker’s recovery was prolonged considering the normal healing times for a lower back sprain/strain.

Further, the ER pointed to medical information prior to the date of injury that demonstrates a disc herniation at L5-S1 and it was recommended the worker undergo decompression surgery prior to the date of injury.

Worker Position

The worker did not participate in this appeal.

Severity of Accident

In evaluating the accident history, consideration is given to the accident history components, which include the mechanics, position and environment.

The severity of the accident is evaluated in terms of the accident history using the following definitions:

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

The ER submits that the accident severity is minor, noting the mechanics of the accident were removing curtains in a wash bay and there was no added environmental factors or added peril. Further, there was no awkward postures so it would be expected that this would cause a non-disabling or a minor disabling injury.

I acknowledge the arguments; however, I do not agree with the ER’s position that the accident was of minor severity because I find that the act of squatting down and then lifting is an awkward posture and that would be expected to cause a disabling injury. Further, I find that in their arguments the ER has minimized the weight and size of the curtains. In this case, the significant size and weight of these curtains coupled with the awkward posture created a situation of added peril that would reasonably be expected to cause a disabling injury. For this reason, I find that the workplace accident in which this worker was injured was of moderate severity. The worker was working with a co-worker to remove wash bay curtains in a transport truck facility. The curtains were about thirty (30) feet in height and weighed several hundred pounds, which were suspended on a metal pole. The worker was on the ground lifting the panels to lessen the weight on the top end. At the same time, the co-worker could lift the curtains off from each section while on a Skyjack. The worker explained that as they were lifting the curtain panel they squatted down and lifted at the same time when they felt a sharp pinch in their lower back.

In conclusion, I find that the size and weight of these industrial curtains was a significant factor in the injuring process. I note that the worker squatted down and then stood up lifting a section of the curtain. I find that in considering this mechanism of injury, that it would reasonably be expected to cause a disabling injury.

As such, I find that the severity of the accident was moderate.

Significance of Pre-existing Condition

The medical significance of the condition is assessed in terms of the extent that it would make the worker liable to develop a disability of a greater severity than that of a normal person.

I find that the pre-existing condition is considered moderate in severity. When considering SIEF, I have regard for the injuries sustained, the anticipated recovery time and whether or not a pre-existing condition has affected the recovery. Policy 14-05-03 requires more than the identification of a pre-existing condition. There must be evidence the pre-existing condition prolonged or enhanced the recovery period.

In this case, this claim was initially allowed for a sprain injury as per the initial entitlement decision of April 12, 2020. A reconsideration later determined that the work injury of April 3, 2020 did cause an exacerbation to the pre-existing L5-S1 disc herniation.

I have considered the ER arguments that the pre-existing condition was major. I find that the worker’s pre-existing conditions would place the worker at higher than minor or, slightly higher 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. While I acknowledge that the worker had pre- existing back conditions there is no evidence that the accident was caused by a pre-existing condition.

The worker was symptomatic before the date of injury and was referred for a neurosurgeon consult. They had work restrictions in place for their back and had missed periods of time from work. I further note that in the June 24, 2020, report from Dr. Koo that given the pre-existing history of disc herniation

the worker would have a slightly higher risk of further herniation than a person with an intact disc would. I find that this made the worker slightly more liable to develop a disability of greater severity than if they did not have this condition. For these reasons, I find that the pre-existing condition was of a moderate severity as there was an elevated risk but in the words of Dr. Koo is was slightly higher risk.

I also note that while a temporary exacerbation of the pre-existing L5-S1 disc herniation was allowed, the claim was closed with no further benefits as of August 7, 2020. The further interventions that occurred for the lower back after this date were not allowed as part of this claim. As such, in terms of the duration of this claim, I do not find that the pre-existing condition significantly prolonged or enhanced the recovery period.

In terms of the ER’s argument that the worker’s smoking habits should be considered a pre-existing condition that has delayed this worker’s overall recovery, I do not agree with the ER. Smoking is considered a behavior or habit, and does not meet the definition of a pre-existing condition.

Therefore, I find that the accident severity is moderate and the significance of the pre-accident condition is moderate. In these circumstances, policy provides for cost relief of 50%. Therefore, the employer’s objection is denied.

CONCLUSION

The quantum of cost relief under the SIEF is confirmed at 50%. The employer’s objection is denied.

DATED March 10, 2022

Conrad Flatman

Appeals Resolution Officer Appeals Services Division