APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20220096
OBJECTING PARTY:
employer
REPRESENTED by:
EMPLOYER REPRESENTATIVE
RESPONDENT:
worker (not participating)
HEARING:
HEARING IN WRITING
HEARD by:
breighann fairburn, appeals resolution officer
JUNE 9, 2022
ISSUE
The employer objects to the Case Manager’s decision dated March 17, 2021, denying entitlement to cost relief under the Second Injury and Enhancement Fund (SIEF).
BACKGROUND
On December 1, 2019, this Shoe Associate sustained an injury to their right hip when they banged it off the corner of a glass table while walking by. The worker received initial entitlement to benefits for a right hip strain and contusion. The employer offered modified duties, which the worker performed. The worker participated in formal therapy and Specialist assessments.
The worker experienced intermittent periods of loss of earning between December 28, 2019 and
June 18, 2020 for which entitlement to loss of earnings benefits were denied.
Following a closure due to the Covid pandemic, the worker returned to work performing modified duties on May 19, 2020. The employer permanently laid off the worker, along with similarly employed workers on November 25, 2020.
In a decision dated January 28, 2021, the Case Manager extended the worker’s entitlement to include avascular necrosis of the right hip with subchondral collapse, associated insufficiency fracture of the formal head/neck, and secondary advanced osteoarthritis. They found that these diagnoses, in addition to the right hip strain and contusion, were compatible with the mechanism of injury. They also allowed entitlement to benefits for a total right hip replacement surgery.
In a decision dated March 17, 2021, the Case Manager denied entitlement to cost relief under the SIEF. They determined that there was no indication that the accident was caused by a pre-existing condition and they also found that there was no evidence of a pre-existing or underlying condition influenced the recovery.
The worker received entitlement to full loss of earnings benefits from March 30, 2021 to July 16, 2021 during their post-operative recovery phase. In a decision dated August 16, 2021, the Case Manager determined that as of July 16, 2021, the worker was capable of performing the essential duties of their pre-injury job and were able to obtain employment in the general labour market based on their current limitations.
In a decision dated March 29, 2022, the Case Manager determined that the worker achieved maximum medical recovery with an ongoing impairment of their compensable right hip injury as of March 18, 2022. The worker received a 10% non-economic loss (NEL) benefit for their compensable permanent right hip sprain/strain/contusion injury associated with insufficiency occult fracture of the femoral neck, secondary advanced osteoarthritis with acascual necrosis and subchondral collapse.
The employer objects to the denial of entitlement to cost relief under the SIEF. This objection is now before the Appeals Services Division.
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 set out below, I find that the employer does not have entitlement to SIEF cost relief.
Employer Position
In their submission dated November 24, 2021, the employer representative provided their position that there is a minor accident history and a minor pre-existing condition. They requested entitlement to 50% cost relief under the SIEF.
Worker Position
The worker is not participating and has not provided a submission for review.
Operational Policy 14-05-03 – Second Injury and Enhancement Fund (SIEF) 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
According to the operational policy, the severity of the accident is evaluated in terms of the accident history including the following components:
Mechanics (lift, push, pull, fall, blow, etc)
Position (kneeling, standing, sitting, squatting, bending, etc.)
Environment (lightening, temperature, weather conditions, terrain, etc.)
The severity of the accident is defined as follows:
Minor: expected to cause non-disabling or minor disabling injury
Moderate: expected to cause disabling injury
Major: expected to cause serious disability probably permanent disability
The employer representative submitted that the accident was minor in severity.
On December 1, 2019, this worker felt immediate pain when they bumped their right hip off the corner of a glass table while walking by. I find that this accident is minor in severity and would be expected to cause a non-disabling injury. Noting that the worker was walking, the force behind the impact is limited. Furthermore, the information on file does not support that the table fell or that the worker fell following the impact, which supports that the mechanics of the accident were minor in nature.
Therefore, in accordance with Operational Policy 15-04-03 – Secondary Injury and Enhancement Fund (SIEF), I find that the accident, on its own merits, was minor in severity and would be expected to result in a non-disabling injury.
Significance of Pre-existing Condition
According to Operational Policy 14-05-03 – Secondary Injury and Enhancement Fund (SIEF):
Pre-accident disability is defined as a condition, which has produced periods of disability in the past requiring treatment and disrupting employment.
Pre-existing condition is defined as an underlying or asymptomatic condition, which only becomes manifest post-accident.
The employer representative submitted that worker’s history of smoking played a role in their development of avascular necrosis following their hip fracture. They have also submitted that it is just as plausible that the avascular necrosis and the osteoarthritis were present and developing prior to the work related injury and requested consideration for the impact of these conditions as pre-existing.
In their decision dated January 28, 2021, the Case Manager determined that the worker had entitlement to the following diagnoses, as they were compatible with the mechanism of injury reported in the work-related accident:
Right ship sprain/strain/contusion with avascular necrosis
Subchondral collapse
Associated insufficiency fracture of the femoral neck/head, and
Secondary advanced osteoarthritis
Furthermore, the Case Manager allowed entitlement to benefits for a total right hip replacement surgery.
The employer representative’s submission provides an argument that the secondary advanced osteoarthritis and the avascular necrosis were pre-existing conditions which were asymptomatic and did not become manifest until after the work-related injury. They further submitted that the evidence of advanced osteoarthritis only 11 months following the compensable accident supports that this osteoarthritis pre-existed the injury.
Entitlement in this claim is not an issue that is properly before me. The Case Manager has determined that the above diagnoses were clinically compatible with, thus they resulted from, the work-related injury of the worker bumping their hip on the corner of a glass table. As it has been determined that the avascular necrosis and the secondary advanced osteoarthritis resulted from the work-related accident, I am unable to consider that they were also pre-existing asymptomatic conditions as the employer representative has suggested. They do not meet the criteria for a pre-existing condition or a prior disability, as it has been accepted that they are compatible with the accident details.
When I consider if the worker’s history of smoking constitutes a pre-accident disability, I note that it is the employer representative’s submission that the habit of smoking, results in deoxygenated blood and narrowing of blood vessels, which then impacted the worker’s development of avascular necrosis.
The habit of smoking resulting in deoxygenation of the blood and narrowing of the blood vessels does not fit the definition of a pre-existing condition. It is an accepted fact in the medical community that there is a lack of oxygenation and narrowing of blood vessels that result from smoking. The worker was smoking prior to the accident. Therefore, I accept that in the presence of smoking, the lack of oxygenation and narrowing of the blood vessels were known prior to the work-related accident. Therefore, this was not an asymptomatic condition that only manifested (became known) post-accident.
The clinical evidence on file does not support that the worker had a history of treatment for lack of oxygenation in their blood or blood vessel narrowing due to smoking prior to the work-related injury. Nor is there evidence that there was an employment disruption. Therefore, the habit of smoking and the resulting deoxygenation of the blood or narrowing of the vessels does not meet the definition of a pre-accident disability.
In the Occupational Health Assessment Program report dated March 2, 2020, the worker denied any pre-existing or concurrent medical conditions and reported that their past medical history was unremarkable. On August 24, 2020, Dr. Krishna noted that the worker was not recovering as expected noting the worker’s ongoing symptoms in the presence of a relatively minor sprain/strain injury.
Dr. Peskun assessed the worker on October 27, 2020 through the Lower Extremity Specialty Program. They recommended further testing noting that they were concerned for the presence of right hip avascular necrosis or a labral tear. On December 11, 2020, Dr. Peskun reported that there was evidence of avascular necrosis of the right hip with subchondral collapse, with a superimposed femoral head/neck insufficiency fracture, and secondary advanced osteoarthritis. Dr. Peskun did not identify any barriers to the worker’s recovery aside from the accepted entitlement in the claim. They noted that the avascular necrosis would delay a recovery post hip replacement, in the report dated January 19, 2021. There is no evidence of the presence of non-compensable diagnoses, which contributed to or enhanced the accident or severity of the injury. There is also no evidence of non-compensable diagnoses, which delayed the worker’s recovery.
I have determined that the evidence on file does not support the presence of a pre-existing condition which rendered the worker liable to develop a disability of greater severity then a normal person of unexpectedly prolonged their recovery. I have also determined that there is no evidence of a prior disability, which caused or contributed to the accident. Therefore, in accordance with Operational Policy 15-04-03 – Secondary Injury and Enhancement Fund (SIEF), there is no evidence to cost relief under the SIEF in this claim.
CONCLUSION
There is no entitlement to SIEF cost relief.
The employer’s objection is denied.
DATED June 9, 2022
BreighAnn Fairburn
Appeals Resolution Officer
Appeals Services Division