DECISION NUMBER:

20230019

OBJECTING PARTY:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

RESPONDENT:

WORKER (NOT PARTICIPATING)

HEARING:

HEARING IN WRITING

HEARD by: DATED:

K. MACMILLAN, APPEALS RESOLUTION OFFICER January 16, 2023

ISSUE

The employer representative, on behalf of the employer, is objecting to the Case Manager’s decision of September 13, 2022 denying entitlement to cost relief under the Second Injury and Enhancement Fund (SIEF).

BACKGROUND

On November 24, 2021, the worker was in the course of employment as a cashier when they tripped over a basket holder while walking. The worker fell to their knees and then flat onto the floor, injuring their right knee and lower back. A Workplace Safety and Insurance Board (WSIB) decision letter dated November 27, 2021 allowed initial entitlement to health care benefits for the right knee and lower back. An Eligibility Adjudicator’s decision letter dated February 4, 2022 denied entitlement to loss of earnings (LOE) benefits from November 25, 2021 to January 8, 2022. A Case Manager’s decision letter dated June 10, 2022 allowed entitlement to partial LOE benefits from March 16, 2022 to June 6, 2022.

The employer representative requested entitlement to SIEF cost relief within correspondence dated July 12, 2022. The Case Manager’s decision letter of September 13, 2022 determined that the medical evidence did not support that the work-related injuries were enhanced or prolonged due to a pre-existing condition or prior injury. A separate Case Manager’s decision letter dated September 22, 2022 confirmed that the lower back sprain/strain and right knee bruise/contusion injuries both reached maximum medical recovery with no permanent impairment as of August 24, 2022. The Appeal Readiness Form signed November 8, 2022 requested that the employer’s objection to the denial of entitlement to SIEF cost relief be resolved as a hearing in writing. The reconsideration letter of November 24, 2022 upheld the prior decision of September 13, 2022. The issue is now before me.

AUTHORITY

Operational Policy Manual

Published

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

February 20, 2006

ANALYSIS

I find that entitlement to SIEF cost relief is not in order. 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.

Employer representative’s position

It is the employer representative’s position that 75% SIEF cost relief should be authorized for a minor accident severity and the numerous pre-existing conditions that have enhanced the workplace injury and prolonged recovery. In particular, the employer representative highlights that the Case Manager referred the worker to the Specialty Clinic due to a possible delay in recovery and/or return to work.

The written submission of November 8, 2022 refers to multiple pre-existing conditions including the following:

• Degenerative changes in the lower lumbar spine (facet arthrosis, grade 1 degenerative spondylolisthesis at L4-5);

• An osteopenic lumbar spine;

• Diabetes; and,

• Hypertension.

Severity of Accident

In my view, the accident severity of the work-related incident dated November 24, 2021 is moderate.

Policy 14-05-03, Second Injury and Enhancement Fund (SIEF), explains that the severity of accident is to be evaluated in terms of the accident history and approved definitions. Policy directs decision-makers to consider any applicable accident history components of mechanics (such as a lift, push, pull, or fall), environment, and position. Policy 14-05-03 outlines that minor accident severity involves a case where a non-disabling or minor disabling injury would be expected. A disabling injury would be expected with a moderate accident. A major accident severity would be expected to cause probable permanent disability.

The worker’s written statement of November 27, 2021 indicates that their foot became caught on a wheeled hand basket holder as they were walking. The Worker’s Report of Injury signed January 5, 2022 clarifies that they then fell onto their knees before going flat onto the floor. The chiropractor’s verbal statement of February 7, 2022 indicates that the worker reported twisting their back before falling forward. Therefore, I accept that the accident history involves the worker twisting as they fell onto a hard surface. Based on this evidence, it is my opinion that the accident severity is moderate as I would expect that such a scenario would result in a disabling injury.

Did a prior disability cause or contribute to the workplace accident?

I find that a prior disability did not cause or contribute to the workplace accident.

Policy 14-05-03 defines a pre-accident disability as a condition that has produced periods of disability requiring treatment and disrupting employment. As a result, I find that there must be some form of evidence that the worker required accommodation, lost time, or modified duties within a reasonable period of time leading up to the work-related accident.

As noted by the employer representative, the worker’s verbal statement of February 8, 2022 confirms that they have Type 1 diabetes and that they see the chiropractor regularly, or whenever they can afford it.

The worker also describes getting sore from time to time for which they will seek chiropractic or massage treatment. The employer representative further points out that the employer’s verbal statement of March 15, 2022 confirms that the worker did not have good attendance prior to November 24, 2021 due pre- existing conditions. Consequently, I accept that the policy definition of a prior disability is met as there appears to be both pre-accident health care and a disruption to the worker’s employment.

Even so, I find that there is no evidence that the low back degeneration, osteopenia, diabetes, hypertension, or any other prior disability caused or contributed to the worker tripping and falling at work on November 24, 2021. Given this determination, I find that there can be no entitlement to SIEF cost relief for a prior disability. Hence, I will now turn to the submitted arguments regarding the significance of the documented pre-existing conditions.

Significance of Pre-existing Condition

I am not persuaded that there is evidence of a pre-existing condition as defined by policy that either enhanced or prolonged the claim.

The employer representative suggests that there are no other explanations offered on file to account for or explain the severity of the injury or the prolonged recovery time. However, I note that the chiropractor’s verbal statement of February 7, 2022 indicates that the worker missed some sessions while the clinic was closed for the holidays. The chiropractor also indicates that the worker then missed further sessions as they were required to isolate after their spouse became sick. The Back and Neck Specialty Clinic’s Enhanced Functional Treatment progress report of May 25, 2022 documents that the worker missed a week of treatment due to going out of province on vacation. Therefore, I am not persuaded that there is no other possible explanation related to the worker’s recovery time.

Policy 14-05-03 states that the medical significance of the pre-existing condition is to be considered with respect to how it makes a worker liable to develop a disability of greater severity than a normal person. Policy 14-05-03 outlines that the medical significance of the pre-existing condition may be categorized as either minor, moderate, or major. All that being said, I must first consider that Policy 14-05-03 defines a pre-existing condition as an underlying or asymptomatic condition which only becomes manifest post-accident.

Turning to the medical evidence supporting the presence of pre-existing conditions, I recognize that the Occupational Health Assessment Program’s low back assessment report of March 4, 2022 lists diabetes as a non-work-related diagnosis which might affect the worker’s healing time. The report also lists both diabetes and hypertension as barriers to returning to work. I acknowledge that the Back and Neck Specialty Clinic’s comprehensive assessment report of April 4, 2022 documents unspecified co-morbidities as barriers to return to work. On the other hand, the report verifies that the worker has been treating the diabetes with an unknown dose/frequency of insulin since they were 16 months old (or more than 50 years). Given this evidence, I am not persuaded that the diabetes was asymptomatic or did not become manifest post-accident.

The Back and Neck Specialty Clinic’s report of July 18, 2022 confirms that the dose/frequency of the worker’s insulin dependency is not known. Importantly, I observe that the orthopaedic specialist does not list any relevant non-work-related diagnosis or identify the co-morbidities that may be a barrier to return to work. The Back and Neck Specialty Clinic Enhanced Functional Treatment discharge report dated August 24, 2022 lists diabetes and asthma as pre-existing medical factors that are barriers to recovery.

To summarize, I do not accept that the worker’s Type 1 diabetes is a pre-existing condition within the definition provided under Policy 14-05-03 as it was not asymptomatic. I find that there is insufficient evidence to explain how either the worker’s hypertension or asthma prolonged recovery or became a barrier for returning to work. I appreciate that the Back and Neck Specialty Clinic confirms that the worker has facet arthrosis, grade 1 degenerative spondylolisthesis at L4-5, and what appears to be an osteopenic lumbar spine. Still, I observe that the assessing orthopaedic specialist provides the clinical opinion on July 18, 2022 that the degenerative changes in the lower lumbar spine, including facet arthrosis and grade 1 degenerative spondylolisthesis at L4-5, are not related to the worker’s persistent left side buttock pain in the sacroiliac joint.

Finally, I note that the assessing orthopaedic surgeon does not list any form of lumbar degeneration as a pre-existing medical factor that is a barrier to recovery or return to work. Again, the Back and Neck Specialty Clinic’s report of July 18, 2022 clearly states that there are no relevant non-work-related diagnoses. Therefore, I find that there is insufficient objective clinical evidence to support that the period resulting from an accident became prolonged or enhanced due to a pre-existing condition as defined by Policy 14-05-03. Accordingly, it is my opinion that entitlement to SIEF cost relief for a pre-existing condition is not appropriate.

CONCLUSION

I conclude that the accident severity is moderate. A pre-accident disability is not evident.

A pre-existing condition did not prolong or enhance the period of recovery from the work-related injury. Entitlement to cost relief under the Second Injury and Enhancement Fund (SIEF) is not in order.

The employer’s objection is denied.

DATED January 16, 2023

K. MacMillan

Appeals Resolution Officer Appeals Services Division