DECISION NUMBER:

20220068

EMPLOYER

EMPLOYER REPRESENTATIVE

WORKER(NOT PARTICIPATING)

HEARING IN WRITING

S. JOHNSON, APPEALS RESOLUTION OFFICER

APRIL 28, 2022

OBJECTING PARTY:

REPRESENTED by:

RESPONDENT:

HEARING:

HEARD by:

DATED:

ISSUE

The employer objects to the Case Manager’s decision letter dated September 22, 2020 and reconsideration decision letter dated April 5, 2022 that denied entitlement to Second Injury and Enhancement Fund (SIEF) relief.

BACKGROUND

On January 26, 2019, this Front End Assistant scanned a heavy detergent bottle and lifted it to load into the cart behind them when their right wrist turned and bent backward. The worker experienced a sudden onset of right wrist pain.

The worker received first medical treatment on January 28, 2019. In the Health Professional’s Report (Form 8) dated January 31, 2019, the physician provided the diagnosis of a right wrist strain injury. The physician recommended the worker limit use of the right wrist and hand regions for one week and avoid lifting greater than five pounds.

Initial entitlement was allowed for the right wrist strain injury arising from the work incident on January 26, 2019.

The worker did not lose any time from work and returned to work to modified duties immediately following the work incident of January 26, 2019. The worker participated in a course of physiotherapy treatments twice per week that included laser therapy, ultrasound, TENS machine and exercises. The worker reported no improvement in their right wrist symptoms.

On June 4, 2019, the Nurse Consultant referred the worker to the WSIB Upper Extremity Specialty Program to assist with their recovery and return-to-work outcomes.

In the WSIB Upper Extremity Specialty Program Comprehensive Assessment Report dated

June 25, 2019, the orthopaedic surgeon provided the occupational diagnoses of right de Quervain’s tenosynovitis, extensor carpi ulnaris tendinitis with possible subluxation and instability of the right extensor carpi ulnaris tendon. The orthopaedic surgeon recommended the worker participate in an active and progressive rehabilitation program to address ongoing symptoms and facilitate a gradual progression of duties. Additional treatment recommendations included a proper de Quervain’s thumb- based splint prior to considering injections and surgery. A dynamic ultrasound was ordered to identify whether or not there was an active subluxing extensor carpi ulnaris tendon in the right wrist.

Entitlement was expanded to include right de Quervain’s tenosynovitis and extensor carpi ulnaris tendinitis.

In the WSIB Upper Extremity Specialty Program Follow-Up Report dated September 25, 2019, the orthopaedic surgeon reviewed the right wrist ultrasound report dated July 29, 2019 that observed a complete extensor carpi ulnaris subluxation of the ulnar groove with wrist rotation. There was no evidence of de Quervain’s tenosynovitis yet the clinical symptoms are consistent with de Quervain’s tenosynovitis. The orthopaedic surgeon administered a cortisone injection in the right wrist region. If this did not work, then surgery was recommended to release the first dorsal extensor compartment.

In the operative report dated January 3, 2020, the orthopaedic surgeon provided the post-operative diagnoses of right wrist de Quervain’s tenosynovitis and subluxation of the extensor carpi ulnaris tendon.

The worker participated in their post-operative health recovery treatment plan from January 3, 2020 to February 12, 2021. In the WSIB Upper Extremity Specialty Program Follow-up Report dated

February 12, 2021, the orthopaedic surgeon concluded the worker reached maximum medical recovery with no further improvement expected. The orthopaedic surgeon confirmed the worker’s restrictions were permanent and discharged them from the clinic.

In the Non-Economic Loss (NEL) Evaluation Report dated April 26, 2021, the NEL Clinical Specialist granted entitlement to a 1 percent NEL benefit for the permanent impairment in the worker’s right wrist region. The accepted diagnoses for NEL rating purposes was a surgically treated right wrist

de Quervain’s tenosynovitis, extensor carpi ulnaris tendinitis with subluxation and instability of the right extensor carpi ulnaris tendon.

In a letter dated May 28, 2020, the employer representative requested entitlement to SIEF relief.

In a decision letter dated September 22, 2020 and in a reconsideration decision letter dated April 5, 2022, the Case Manager denied entitlement to SIEF relief as it was concluded there was no evidence to suggest the worker’s recovery was prolonged or that an underlying condition impacted the treatment process. The Case Manager also concluded there was no evidence to suggest an underlying condition contributed to the work incident of January 26, 2019.

This is the issue for determination.

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.

Entitlement to SIEF Relief

I find entitlement to SIEF relief is denied.

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.

Severity of Accident

I find the work incident of January 26, 2019 is minor in severity for SIEF rating purposes.

The Operational Policy Manual (OPM) Document No. 14-05-03 – Second Injury and Enhancement Fund (SIEF) (published February 20, 2006) – 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.)

Employer Representative Submission:

In a submission attached to the Appeal Readiness Form dated May 27, 2021, the employer representative submits the work incident of January 26, 2019 is minor in nature. There was no blunt force trauma to the right wrist region and the accident history is not consistent with being highly repetitive.

Worker Submission:

In a letter dated January 7, 2021, the worker was advised of the employer’s intention to appeal the decision letter dated September 22, 2020. The worker was advised to complete and return the enclosed Worker Participant Form to the WSIB within 30 days if they intend to participate in the appeal process.

The worker has not completed and returned the Worker Participant Form at the time I received the employer’s appeal for my review and determination.

Findings:

I agree with the employer representative’s position the work incident of January 26, 2019 is expected to cause non-disabling or minor disabling injury. In reaching this finding, I relied upon the worker’s evidence regarding their body position, mechanics and environment at the time they developed right wrist pain at work on January 26, 2019. In a telephone conversation with the Case Manager on December 18, 2019 (Memo A0012), the worker reported the following:

• they were working on the cash and did not have a packer (usually there is a packer)

• they were loading a customer’s buggy and scanning items at the same time

• the buggy was located behind the worker

• they scanned the heavy detergent bottle and lifted it to load into the cart when their right wrist turned in an awkward manner and bent backwards

I am persuaded by the worker’s evidence that supports they were not exposed to additional perils of risk such as being struck by a great deal of trauma, force or momentum. The mechanics of the work incident of January 26, 2019 involved lifting a heavy detergent bottle and loading it into a customer’s buggy located behind the worker. The worker’s body position and work environment involved standing in the warehouse environment at ground level in a static body position when they attempted to load the heavy detergent bottle into the customer’s buggy located behind the worker.

Based on the above, I find the work incident of January 26, 2019 meets the approved definition of a minor accident in the OPM Document No. 14-05-03 – Second Injury and Enhancement Fund (SIEF) (published February 20, 2006) – as it is expected to cause non-disabling or minor disabling injury.

Significance of Pre-Existing Condition

I find there is no evidence to support a prior disability caused or contributed to the work incident of January 26, 2019.

I also find there is no evidence to support the period resulting from the work incident of January 26, 2019 was prolonged and/or enhanced due to a pre-existing condition.

Employer Representative Submission:

In a submission attached to the Appeal Readiness Form dated May 27, 2021, the employer representative contends there is evidence of pre-existing conditions that changed the worker’s overall expected recovery time line from three months to one year post-operatively.

The employer representative pointed out the worker’s history of untreated Lupus and age at the time of the work incident on January 26, 2019 could have impacted the work-related injury. In support of this position, the employer representative relied upon a medical research document from the Merck Manual Consumer Version entitled Overview of Autoimmune Disorders of Connective Tissues, April 2020 that examined the causative issue as follows:

In an autoimmune disorder, antibodies or cells produced by the body attack the body’s own tissues. Many autoimmune disorders affect connective tissue and a variety of organs. Connective tissue is the structural tissue that gives strength to joints, tendons, ligaments and blood vessels.

Given the worker’s age and the worker’s untreated history of Lupus, the employer representative contends this likely impacted their recovery.

The employer representative prepared an argument regarding the issue concerning compatibility of the diagnosis of de Quervain’s tenosynovitis and the work incident of January 26, 2019. The essence of this argument was the cause of this condition was likely due to an inflammatory condition or the worker’s untreated Lupus. The issue concerning the allowance of initial entitlement to the diagnosis of

de Quervain’s tenosynovitis and the accident history of January 26, 2019 is not before me and will not be considered in this review. The narrow issue in dispute before me is the denial of entitlement to SIEF relief.

Based on the above, the employer representative seeks entitlement to 75 percent to 90 percent SIEF relief for a minor accident history and a moderate to major pre-existing condition.

Findings:

I had regard for the first criterion in the OPM Document No. 14-05-03 – Second Injury and Enhancement Fund (SIEF) (published February 20, 2006) – that states if a prior disability caused or contributed to the compensable accident, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule I to the SIEF. This policy goes on to provide the definition of a pre- accident disability as a condition, which has produced periods of disability in the past requiring treatment and disrupting employment. I find this criterion has not been met.

In support of this finding, I relied upon the WSIB Upper Extremity Specialty Program medical reports during the continuity period from June 25, 2019 to February 12, 2021. In all 10 of these reports, the orthopaedic surgeon documented there were no relevant non-occupational diagnoses or pre-existing medical factors as barriers to the worker’s recovery and/or return-to-work. There has been no other valid, reliable substantive medical evidence submitted to the case record to rebut this finding.

I acknowledge the employer representative’s position this worker reported with a history of arthritis and bilateral wrist pain. There is nothing submitted to the case record to suggest this worker’s subjective reporting of arthritis and bilateral wrist pain produced periods of disability in the past, required medical treatment and disrupted their employment. I am persuaded by the medical evidence that supports there is no evidence of a prior disability that caused or contributed to the work incident of January 26, 2019.

This worker attempted to lift a heavy bottle of laundry detergent and place it in the customer’s buggy. In the course of this event, the worker’s right wrist was in an awkward position and bent backwards.

I then reviewed the second criterion in the OPM Document No. 14-05-03 – Second Injury and Enhancement Fund (SIEF) (published February 20, 2006) – that states 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 to the SIEF. This policy provides the definition of a pre-existing condition as an underlying or asymptomatic condition, which only becomes manifest post-accident.

This policy 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.

The issue to be resolved is whether a pre-existing condition prolonged or enhanced the worker’s period of recovery following the work incident of January 26, 2019.

The principle argument put forth by the employer representative is this worker’s age and untreated Lupus prolonged and enhanced their period of recovery following the work incident of January 26, 2019. I am unable to agree with this position, as it is speculative in nature and not grounded in any valid reliable clinical objective medical evidence from all of the health professionals who treated the worker for their right wrist injury.

In support of this finding, I accord the greatest amount of weight to the extensive medical reports from the WSIB Upper Extremity Clinic during the continuity period from June 25, 2019 to February 12, 2021. In all of these reports, the orthopaedic surgeon did not express a medical opinion to suggest the worker’s recovery from their work-related right wrist de Quervain’s tenosynovitis and subluxation of the extensor carpi ulnaris tendon was prolonged or enhanced by a pre-existing condition. To the extent the worker’s period of recovery spanned a period of two years is directly attributable to the treatment plan. The orthopaedic surgeon recommenced conservative medical management that included physiotherapy, proper splinting and injections. If the worker did not respond to the conservative treatment plan, then surgery was recommended. This is exactly what happened. I find it significant this worker went on to experience post-operative complications with a tight-fitting cast that impacted blood circulation.

It is instructive in the WSIB Upper Extremity Specialty Program Postsurgical Follow-up Report dated May 6, 2020 the orthopaedic surgeon estimated the time line for the worker to reach maximum medical recovery is approximately one year post-operatively. In the WSIB Upper Extremity Specialty Program Report dated February 12, 2021, the orthopaedic surgeon discharged the worker from the clinic with no further follow-up or active medical treatment plans recommended or required. The orthopaedic surgeon provided the worker with permanent partial restrictions arising from their surgically treated right wrist

injury. This is approximately one year following the right wrist surgery on January 3, 2020 and well within the anticipated recovery period.

The orthopaedic surgeon at the WSIB Upper Extremity Specialty Program is the worker’s primary health professional for their work-related right wrist de Quervain’s tenosynovitis and subluxation of the extensor carpi ulnaris tendon injury. The orthopaedic surgeon had the opportunity to conduct extensive in-person interviews with the worker on a regular basis from June 25, 2019 to February 12, 2021 (with the exception of one videoconferencing visit on May 6, 2020). At each visit, the orthopaedic surgeon obtained the worker’s symptoms and complaints, completed a physical examination of the worker’s right wrist at each visit and recorded the clinical objective findings. The orthopaedic surgeon performed the worker’s right wrist surgery on January 3, 2020 and monitored the worker’s post-surgical treatment recovery at regular intervals.

The orthopaedic surgeon’s extensive medical reports are objective, balanced and based on the facts and circumstances of this worker’s situation, as they existed at each visit. The orthopaedic surgeon did not express a medical opinion to suggest the worker’s pre-existing history of untreated Lupus was a factor that enhanced and/or prolonged the worker’s recovery from their work-related right wrist de Quervain’s tenosynovitis and subluxation of the extensor carpi ulnaris tendon. In the WSIB Upper Extremity Specialty Program Comprehensive Assessment Report dated June 25, 2019, the orthopaedic surgeon examined the right wrist ultrasound report dated May 14, 2019 and x-ray report dated June 19, 2019 that observed no fractures or degenerative findings.

I reviewed the employer representative’s position the operative report dated January 3, 2020 observed the sub sheath was extremely diminutive in support of the position a pre-existing condition made the worker susceptible to sustaining a more severe injury from a minor accident history. I am unable to agree with this position, as it is speculative in nature and not supported by any of the medical evidence from the orthopaedic surgeon. In my view, if the size of the sheath was of any clinical significance, then it is expected, at best, that the orthopaedic surgeon would have expressed a medical opinion regarding this particular clinical finding in the context of the worker’s post-surgical recovery and treatment plan. This is not the case.

I accept the orthopaedic surgeon’s extensive medical reports during the continuity period from

June 25, 2019 to February 12, 2021 that all supports the finding this worker’s recovery and claims period was not enhanced or prolonged due to a pre-existing condition.

I find the threshold criteria in the OPM Document No. 14-05-03 – Second Injury and Enhancement Fund (published February 20, 2006) – have not been met. The evidence does not support a pre-existing disability caused or contributed to the work incident of January 26, 2019 or that the worker’s period of recovery was prolonged or enhanced by a pre-existing condition.

Based on the above, I find entitlement to SIEF relief is denied.

CONCLUSION

I conclude entitlement to SIEF relief is denied. The employer’s objection is denied.

DATED April 28, 2022

S. Johnson

Appeals Resolution Officer Appeals Services Division