DECISION NUMBER:
20220097
OBJECTING PARTY:
EMPLOYER
REPRESENTED by:
EMPLOYER REPRESENTATIVE
RESPONDENT:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
DATED:
S. JOHNSON, APPEALS RESOLUTION OFFICER
JUNE 29, 2022
ISSUE
The employer objects to the Case Manager’s decision letter dated October 20, 2021 and reconsideration decision letter dated March 10, 2022 that denied entitlement to Second Injury and Enhancement Fund (SIEF) relief.
BACKGROUND
On September 21, 2015, this meter reader/data collector was standing up while driving an all-terrain vehicle in long grass looking for hazards on the path when their left foot slipped off from the foot rest and went under the rear tire. In the course of this event, the worker was pulled off from the all-terrain vehicle. The all-terrain vehicle went over the worker’s left lower leg.
The worker was taken to the hospital for emergency medical treatment. In the Emergency Record report dated September 21, 2015, the attending emergency physician documented the worker sustained a left ankle distal medial malleolus fracture and proximal fibular shaft fracture with displacement of the talus in the joint. The worker was admitted to the hospital for surgery.
On September 23, 2015, the worker underwent open reduction and internal fixation with a 4.5 mm malleolar lag screw medially and secured with seven screws laterally including a trans syndesmotic screw through the second hole from the lower part of the plate. The post-operative diagnoses included:
bimalleolar fracture with diastasis
Potts fracture of the distal fibula above the posterior tib-fib ligaments with disruption of the lower syndesmosis tib-fib ligaments
distracted fracture of the medial malleolus
Initial entitlement was allowed for the left ankle fracture and surgery on September 23, 2015.
On December 10, 2015, the worker underwent further left ankle surgery for removal of the trans syndesmotic screw. The worker attended physiotherapy treatments post-operatively until June 6, 2016 at which time they were discharged. In a medical report dated June 6, 2016, the physiotherapist recommended a left ankle brace to help with ankle stability and prevent aggravating positions (activity levels, standing and walking including walking on uneven surfaces).
In the Non-Economic Loss (NEL) Evaluation Report dated July 28, 2016, a 2 percent NEL benefit was granted for the permanent impairment in the worker’s work-related left ankle region. The accepted diagnosis for NEL rating purposes was an acute Potts fracture with displacement.
The case record documents the worker claimed entitlement to a left shoulder injury arising from the work incident of September 21, 2015. In a decision letter dated October 25, 2021 and in a reconsideration decision letter dated May 6, 2022, the Case Manager denied entitlement to a left shoulder injury based on the absence of medical evidence to support personal-work related injury arising from the work incident of September 21, 2015.
In 2019, the worker claimed a recurrence of their work-related left ankle injury. In the WSIB Lower Extremity Specialty Clinic report dated September 30, 2019, the orthopaedic surgeon concluded the worker has early degenerative arthritis secondary to the ankle fracture and an arthroscopy was recommended for debridement of the capsule, resection of the distal osteophytes and hardware removal.
On November 4, 2019, the worker underwent left ankle arthroscopy, anterior synovectomy, dorsal cheilectomy of the distal tibia and removal of the hardware from the medial and lateral sides of the ankle. The post-operative diagnosis was left ankle symptomatic hardware and synovitis. The worker participated in a post-operative physiotherapy treatment program. On December 9, 2019, the surgeon discharged the worker with no further follow-up, additional investigations or tests recommended or required. Entitlement to the recurrence, surgery and post-operative treatment plan was allowed.
In a letter dated August 17, 2021, the employer representative requested entitlement to SIEF relief based on the worker’s co-existing conditions of bilateral plantar fasciitis and bilateral knee degenerative changes.
In a decision letter dated October 20, 2021 and in a reconsideration decision letter dated
March 10, 2022, the Case Manager denied entitlement to SIEF relief as it was concluded there was no objective evidence to support the underlying conditions directly impacted the worker’s recovery or enhanced the degree of impairment arising from their work-related surgically treated left ankle fracture injury.
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.
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 September 21, 2015 is major 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 February 7, 2022, the employer representative did not provide any information regarding the classification of the accident history of September 21, 2015 for SIEF rating purposes.
Worker Representative Submission:
In the Worker Participant Form dated November 23, 2021, the worker representative expressed an intention to participate in the appeal process.
In a letter dated March 18, 2022, the worker representative was advised the employer is proceeding with their objection at the Appeals Services Division. The worker representative was advised to complete and return the Respondent Form by May 2, 2022.
The Respondent Form was not completed and returned at the time the employer’s appeal was referred to me for my review and determination.
Findings:
I examined the case evidence regarding the sequence of events that happened at work on September 21, 2015. This aspect of the appeal is not in dispute. In the Employer’s Report of Injury/Disease (Form 7) dated September 22, 2015, the employer documented the following:
Employee was driving a 6X6 ATV on a right of way and was returning to their truck.
They were in very long grass and they were standing up at the time looking for hazards on the path. Their left foot slipped on the foot peg/rest and went under the rear tire. They werepulled off the ATV and the ATV went over his lower leg.
I find the accident components of the work incident of September 21, 2015 are major in severity for SIEF rating purposes. This worker was standing while driving an all-terrain vehicle when their left foot slipped off from the foot rest and went under the tire. In the course of this event, the all-terrain vehicle went over the worker’s left leg. In my view, this worker was exposed to additional perils of risk that include standing while operating an all-terrain vehicle in heavy long grass, slipping, falling and being struck by the
all-terrain vehicle.
Based on the above, I find the work incident of September 21, 2015 meets the approved definition of a major 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 serious disability probable permanent disability.
Significance of Pre-existing Condition
I find there is no evidence to support a prior disability caused or contributed to the work incident of September 21, 2015.
I also find there is no evidence to support the period resulting from the work incident of September 21, 2015 was prolonged and/or enhanced due to a pre-existing condition.
Employer Representative Submission:
In a submission attached to the Appeal Readiness Form dated February 7, 2022, the employer representative contends the worker’s pre-existing left shoulder, bilateral knee and bilateral plantar fasciitis conditions are barriers to their recovery and employability outcomes.
The employer representative does not dispute the fact there is no direct medical evidence of a specific influence. Where the employer representative disagrees is that a decision-maker can still come to a rational conclusion to support SIEF relief even in the absence of medical evidence. Specific reference was made to the Workplace Safety and Insurance Appeals Tribunal’s (WSIAT) Decision No. xxxx/xx released on October 21, 2011 regarding the standard of proof. It was put forth there is sufficient evidence to support the worker’s concurrent pre-existing conditions influenced ambulation and are an additive pain experience that would rationally impact their employment prospects post-accident.
The worker’s bilateral knee pain and bilateral plantar fasciitis conditions affected their mobility and made them more liable to develop a disability of greater severity than a normal person.
It was pointed out the worker has a 2 percent NEL benefit for a prior unknown work-related injury that could have impacted their recovery.
Findings:
I examined 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 reaching this finding, I relied upon the worker’s evidence that does not support the existence of a prior disability at the time they received first medical treatment on September 21, 2015 for their work-related left ankle fracture injury. In the Worker’s Report of Injury/Disease (Form 6) dated December 15, 2015, the worker documented they have no history of a prior similar left ankle condition. The worker’s evidence is consistent with the medical evidence that does not support a pre-existing left ankle condition. The employer representative does not dispute this finding of fact. In the submission attached to the Appeal Readiness Form dated February 7, 2022, the employer representative acknowledged there is no direct medical evidence of a specific influence before the work incident of September 21, 2015.
I accept the case evidence that consistently and accurately documents the worker has not experienced a pre-accident left ankle disability that required medical treatment or disrupted their employment prior to the work incident of September 21, 2015. I find the medical evidence does not support the definition of a
pre-accident disability has been established in the OPM Document No. 14-05-03 – Second Injury and Enhancement Fund (SIEF) (published February 20, 2006). Accordingly, the first criterion in this policy has not been met as there is no evidence to suggest a pre-accident disability caused or contributed to the work incident of September 21, 2015.
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. I find this criterion has not been met.
I am unable to agree with the employer representative’s position the worker’s bilateral knee and bilateral plantar fasciitis conditions made them more liable to develop a disability of greater severity than a normal person. None of the health professionals who treated the worker expressed a medical opinion to suggest a pre-existing or co-existing condition impacted the worker’s recovery and enhanced the impairment in their work-related surgically treated left ankle injury. The contemporaneous medical reporting documents submitted to the case record from September 21, 2015 to December 15, 2021 are objective, balanced and based on the facts and circumstances of this worker’s situation at each clinic visit. I have taken particular note of the following:
In the Health Professional’s Report (Form 8) dated September 21, 2015 and in the Health Professional’s Progress Report (Form 26) dated October 6, 2015, the orthopaedic surgeon documented there are no pre-existing or other conditions/factors that would impact the worker’s recovery or return-to-work.
In a medical report dated September 21, 2015, the orthopaedic surgeon opined this worker needs an open reduction and internal fixation of the left ankle and there is a 100 percent risk of arthritis if they do not operate. The risk of arthritis is minimized if operated, yet never eliminated.
In the medical reports dated November 20, 2015, January 13, 2016, February 18, 2016,
March 3, 2016, March 4, 2016 and May 16, 2016, the physiotherapist consistently and accurately documented there were no pre-existing or other conditions/factors that impacted the worker’s return-to-work or recovery.
In the WSIB Lower Extremity Specialty Clinic reports dated March 25, 2019, September 30, 2019 and December 9, 2019, the orthopaedic surgeon concluded there were no relevant non- occupational diagnoses and the only barrier to recovery and/or return-to-work were identified as workplace factors. The orthopaedic surgeon did not express a medical opinion to suggest there were pre-existing medical factors or conditions that influenced the worker’s recovery and return- to-work outcomes for their surgically treated left ankle fracture injury.
In a medical report dated December 14, 2021, the physician documented this worker did not have any problems with their left shoulder, left knee or ankle prior to the work incident of
September 21, 2015. In this report, the physician opined these problems developed as a result of the work incident of September 21, 2015.
I acknowledge the left ankle x-ray report dated September 21, 2015 observed a slight deformity of the proximal fibular diametaphysis with a result of old healed fracture. I am of the view this finding is of little clinical significance. In this report, it was observed there was no evidence of left knee joint effusion, no calcaneal spurring and no abnormal periosteal reaction or bony sclerosis.
I reviewed the employer representative’s submission regarding the WSIAT Decision No. xxxx/xx released on October 21, 2011 that examines the standard of proof in reviewing SIEF relief. I am not bound by the conclusions reached in this decision as it relates to the case before me. In my examination of this decision, I find it was not helpful as the facts and circumstances in the case before me are distinguishable from the WSIAT Decision No. xxxx/xx released on October 21, 2011. In this decision, the Vice-Chair accepted a pre-existing condition based on the following findings:
I note that some Tribunal decisions, such as Decision No. xxxx/xx, cited above, have found osteoporosis to be a moderate pre-existing condition in the case of a fracture. I find that the circumstances of this appeal are distinguishable, however, in that there is clear documented evidence that the worker’s pre-existing condition greatly increased her risk of fracture and had indeed led to a fracture in the past. This pre-existing condition required treatment, but the worker had not been taking adequate amounts of calcium and vitamin D as recommended. In addition, the worker’s treating specialty considered it a serious possibility that the fracture sustained in the workplace accident was a fragility fracture, that is to say, predominantly related to the osteoporosis condition. Given the specific evidence in this case, I am persuaded that the pre-existing condition was major (emphasis added by this Appeals Resolution Officer).
The Vice-Chair’s conclusion on the medical significance of a pre-existing condition was based on the worker’s increased risk of the development of a fragility fracture than the average normal person. By way of comparison, in the case before me, there is a complete absence of any medical evidence to suggest the worker had a pre-existing condition that made them more than slightly liable to develop a disability of greater severity than the normal person.
In my view, the employer representative’s position on this issue is largely speculative and not grounded in valid reliable clinical objective medical or other evidence. The presence of these conditions in and of itself is not sufficient grounds upon which to award SIEF relief. There is no dispute the worker received treatment for complaints to other areas not recognized as part of the entitlement in the claim. I was not referred to evidence of any significance which suggested these conditions pre-dated the onset of the work-related left ankle injury or that these conditions prolonged the recovery. Subsequent medical or other conditions that develop after a work accident are not covered by the OPM Document No. 14-05-03 – Second Injury and Enhancement Fund (SIEF) (published February 20, 2006).
I find the worker’s treatment plans and recovery following the work incident of September 21, 2015 to the date they reached maximum medical recovery nine months later on June 3, 2016 were well within the expected healing time period for a surgically treated left ankle injury. I also considered the worker’s recovery following the last surgical procedure on November 4, 2019 for left ankle arthroscopy, anterior synovectomy, dorsal cheilectomy distal tibia and hardware removal spanned a period of 10 weeks to January 22, 2020 at which time they returned to work. There is nothing in the medical evidence to suggest this worker’s post-operative treatment and recovery plan was impacted by a pre-existing condition.
I find the 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 September 21, 2015 or that the worker’s period of recovery for their work-related surgically treated left ankle injury was prolonged or enhanced by a
pre-existing condition.
CONCLUSION
I conclude entitlement to SIEF relief is denied. The employer’s objection is denied.
DATED June 29, 2022
S. Johnson
Appeals Resolution Officer Appeals Services Division