APPEALS RESOLUTION OFFICER DECISION
decision number:
20220011
OBJECTING PARTY:
employer
REPRESENTED by:
employer representative
RESPONDENT:
worker
REPRESENTED by:
not participating
HEARING:
HEARING IN WRITING, january 5, 2022
HEARD by:
C. da cunha, appeals resolution officer
January 5, 2022
ISSUE
Entitlement to cost relief under the Second Injury and Enhancement Fund (SIEF).
BACKGROUND
On March 2, 2016, the worker reported to the employer a gradual onset of left wrist pain, which they attributed to the physical demands of their regular duties. The worker saw Dr. J.A. Paolone on March 14, 2016, who diagnosed early left carpal tunnel syndrome (CTS). They had worked with the employer as a Hammersmith for over 16 years at the time.
The Eligibility Adjudicator determined that the physical demands of the worker’s regular duties were compatible with the left CTS, and granted initial entitlement to the condition. On June 30, 2017, the worker underwent left wrist surgery to address left CTS and left cubital tunnel syndrome (QTS), for which the WSIB granted entitlement.
The worker’s surgeon discharged them from care on November 13, 2017, with an expectation of a return to regular duties in four weeks.
On September 2, 2020, the employer representative requested entitlement to SIEF cost relief.
Date of the Case Managers’ (CM) Decisions: February 2, 2021 and August 12, 2021.
CMs’ Conclusions: On February 2, 2021, the CM denied SIEF cost relief, concluding that there was no indication or suggestion on the part of the attending health care professionals that the worker’s recovery was prolonged or that an underlying condition affected the treatment process/recovery or contributed to the work accident.
Another CM reconsidered and upheld the original decision on August 12, 2021. The CM found that the accident history was of a moderate severity. Furthermore, the CM concluded that the evidence did not show that the worker’s obesity and gout caused or contributed to the accident or enhanced the post-accident disability or prolonged the recovery or the duration of the claim.
The Employer’s Position: The employer representative argues that, because the accepted accident history under this claim is the worker’s regular duties, the accident history is of a minor severity. Otherwise, co-workers would also develop CTS and QTS.
Furthermore, the worker suffers from very significant pre-existing obesity, which is the main culprit that predisposed and made them much more vulnerable to the compensable disability, and greatly enhanced it and prolonged the recovery. The internet articles found at www.carpal-tunnel-symptoms.com/carpal-tunnel-syndrome-and-obesity, https://www.clinicaladvisor.com/home/web-exclusives/obesity-associated-with-increased-carpal-tunnel-syndrome-risk/, https://www.belleviewchiro.com/conditions/carpal-tunnel/how-much-can-losing-weight-help-with-carpal-tunnel and confirm that obesity is associated with the development of CTS. Noting the moderate severity obesity and the minor accident, the employer is entitled to 75% SIEF cost relief.
AUTHORITY
Operational Policy Manual
Published
14-05-03 SIEF
February 20, 2006
For the Record:
Centers for Disease Control and Prevention (CDC)
Adult Obesity Causes & Consequences, March 22, 2021
https://www.cdc.gov/obesity/adult/causes.html
Ontario Human Rights Commission
What is Disability?
https://www.ohrc.on.ca/en/policy-ableism-and-discrimination-based-disability/2-what-disability
ANALYSIS
I have carefully considered all of the available information, and relevant operational policy in reaching this decision. Having done so, I find that the employer is not entitled to SIEF cost relief.
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.
The policy defines a pre-accident disability as a condition, which has produced periods of disability in the past requiring treatment and disrupting employment. It adds that a pre-existing condition is defined as an underlying or asymptomatic condition, which only becomes manifest post-accident.
In determining cost relief, consideration is given to the medical significance of the pre-existing condition and the severity of the accident.
The severity of the accident is evaluated in terms of the accident history and approved definitions. The accident history is assessed in terms of its components, which include the following:
- Mechanics (lift, push, pull, fall, blow, etc.)
- Position (kneeling, standing, sitting, squatting, bending, etc.)
- Environment (lighting, temperature, weather conditions, terrain, etc.)
The approved accident severity definitions are:
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 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. An associated pre-accident disability may not exist.
The policy clarifies that the objective of the SIEF to provide employers with financial relief when a pre-existing condition enhances or prolongs a work-related disability. It thereby encourages employers to hire workers with disabilities.
Severity of Accident: The accident history in this specific case are the physical demands of the worker’s regular duties. On March 11, 2016, the worker provided the WSIB with the following details regarding their regular duties:
- States that he works as a Hammersmith - states that this requires him to use his left hand constantly to maneuver steel.
- Indicates that this requires constant bending of the wrist upwards and downwards to control the item that he is currently working with
- States that he is right handed but he has to use the hammer with his right hand and use his left hand to grip the tongs and control them to pick up the pieces of steel from the hot liquid and use the tongs to twist the piece in different directions when working with it
- States that the metal steel pieces that he works with vary in weight anywhere from 5 to 50Ibs
- States that the steel pieces are loaded in a bowl - shaken into a coil - and then he manually picks them up with tongs and then put on a set on dies
- States that they work as a 3 men crew rotating from hammer press, trimmer and checking the piece for imperfections
- States, however, that this is a fast process - every job is different and goes from 10 seconds to 15 seconds to complete
- States that in the 8 hours shift does 3 continuous rotations
- Hammer - impressing with hammer for about 20 minutes, trimming for about 20 minutes to remove excess material and then does check and then starts all over again for 8 hours
- States that he has been doing this for 16 years and has been a Hammersmith for about 8 years
- States that they work as a 3 men crew rotating from hammer press, trimmer and checking the piece for imperfections
- States that he has been experiencing ongoing pain, just recently it has been getting worse and his arm goes numb and he has trouble sleeping at night
- States that currently it hurts too much to operate the hammer and have him on light duty - left hand controls the dyes and controls the tongs and back hand controls as this requires a tight grip and his left hand does all the work
A physical demands analysis of the Hammersmith position on record shows that the worker uses tongs that weigh three to five kilograms (kg) to lift metal pieces that range from 0.5 to 6.8 kgs. The worker handles the tongs with the left hand, requiring forceful gripping, and the constant turning over of the wrist to rotate the metal piece while the die block shapes it. The worker produced 100 such pieces per hour.
The evidence provided by the workplace parties confirms the regular duties required frequent, forceful, and repetitive use of the left wrist, involving the static gripping of a heavy object, as well as torsional, and rotational forces, in a fast-paced environment. The worker performed these duties on a constant basis with the employer for over 16 years. I find the accident history in this case to be one reasonably expected to cause a disabling injury over time. Therefore, I classify it as a moderate severity type accident.
Significance of Pre-existing Condition: The record shows that the worker was five feet, eight inches tall, and weighed 210 pounds. This results in a body mass index at the 31.9 level, which falls within the obese category.
I agree with the employer representative that there is a significant body of evidence that obesity is associated with a number of medical conditions. According to the CDC, the causes of obesity include behaviour (level of activity and diet), community environment, genetics, diseases, and drugs. It is a risk factor for other medical conditions, including hypertension, Type 2 diabetes, coronary heart disease, stroke, osteoarthritis, sleep apnea and breathing problems, many types of cancers, and expedited mortality. However, I am not aware that the medical literature confirms obesity to be a disease. Furthermore, while the Ontario Human Rights Commission will engage the Human Rights Code if a person is perceived to have a disability, or perceived to have functional limitations as a result, it has not recognized obesity itself as a disability.
Noting these facts, obesity is neither a pre-accident disability nor a pre-existing condition as defined and intended by the SIEF policy. It is not a disease or a disability, and, in this specific case, the obesity was not underlying or asymptomatic and clearly did not manifest itself (i.e. become evident or clearly seen/shown) only after the date of injury. While obesity, like smoking, may cause or contribute to pre-accident disabilities or pre-existing conditions, which are defined and intended by the SIEF policy, it is not itself a disability or a pre-existing condition as defined and intended under the same policy.
In any event, even if I were to accept that obesity is a pre-accident disability or pre-existing condition as defined and intended by the SIEF policy, there is no indication by any of the health care providers that treated the worker that the obesity affected the post-accident period. In order to grant SIEF cost relief, it is not enough for the general medical/scientific literature to show a relationship between the pre-accident disability or pre-existing condition and the onset of the compensable injury; the worker’s medical evidence must show, on a balance of probabilities, that the pre-accident disability or pre-existing condition impacted the onset of the work-related injury or the post-accident period. In this case, that specific medical evidence is not present.
The facts and circumstances on record lead me to find that SIEF cost relief is not in order.
CONCLUSION
I find that entitlement to cost relief under the Second Injury and Enhancement Fund is not in order.
The employer’s objection is, therefore, denied.
DATED January 5, 2022
C. da Cunha
Appeals Resolution Officer
Appeals Services Division