Employer v. Worker, 2023 CanLII 24815

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER:

20230032

OBJECTING PARTY:

employer

REPRESENTED by:

EMPLOYER REPRESENTATIVE

RESPONDENT:

Worker

HEARING:

HEARING IN WRITING

HEARD by:

Stephanie Waters, Appeals Resolution Officer

DATED:

FEBRUARY 3, 2023

ISSUE

The employer objects to the Case Manager’s (CM’s) May 6, 2022 decision denying entitlement to cost relief under the Second Injury and Enhancement Fund (SIEF).

BACKGROUND

The worker’s date of hire was August 12, 2019. On November 28, 2020 while working as a registered practical nurse, this now 39-year-old worker assisted another nurse with the transfer of a patient weighing approximately 170lbs. The patient lifted their legs and dropped their body weight on both nurses. The worker heard a popping sound and felt pain in their left foot and ankle. The worker began losing time from work the next day. The operating area approved the claim for a left foot strain and full loss of earnings (LOE) benefits from November 29, 2020 until the worker resumed modified duties and hours on March 9, 2021, at which time they received partial LOE benefits.

Ultrasounds in December 2020 and January 2021 were inconclusive about the possibility of the worker having a left Achilles tendon tear. An MRI on January 20, 2021 showed no acute or subacute abnormalities in the soft tissues of the left calf or ankle, no evidence of a calf muscle tear, and a normal Achilles tendon. The worker participated in physiotherapy treatment and then attended an assessment at a Lower Extremity Specialty Clinic (SC) on February 16, 2021. The SC orthopaedic surgeon and physiotherapist diagnosed the worker with neuropathic pain of the left lower extremity from the work accident.

On July 6, 2021, the CM extended entitlement to include left lower extremity neuropathic pain. After additional treatment, the SC clinicians stated the worker plateaued in their recovery. The CM determined the worker’s left foot and ankle injury reached maximum medical recovery with a permanent impairment as of September 21, 2021. The worker received a 2% Non-Economic Loss (NEL) benefit for a permanent left ankle impairment on October 13, 2021.

The employer indicated they were unable to accommodate the worker’s permanent restrictions and the worker began receiving full LOE benefits as of October 11, 2021. The worker participated in a Work Transition plan for a suitable occupation of medical administrative assistant. At the completion of the plan on March 25, 2022, the CM approved partial LOE benefits based on suitable occupation wages. In August 2022, a psychologist diagnosed the worker with somatic symptom disorder with predominant pain. On November 23, 2022, the CM denied entitlement for chronic pain disability.

The employer’s representative submitted a request for SIEF cost relief in April 2022. The CM denied the request on May 6, 2022 because they determined there was no evidence of a pre-existing or underlying condition that contributed to the injury or influenced the recovery. The CM confirmed this decision to deny SIEF cost relief on November 17, 2022. The employer’s representative objected to the decision and submitted an Appeal Readiness Form.

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. I find SIEF cost relief is not in order.

The employer’s appeal is denied.

Employer’s Position

The employer’s representative argued that entitlement should be denied for the worker’s left ankle neuropathic pain because it is not work-related and caused by their pre-existing hypothyroidism. The representative also argued the ATFL injury identified on the June 2021 MRI was either an incidental finding or inconsistent with the accident history.

In the alternative, it is the employer representative’s position that the employer is entitled to 90-95% cost relief because the accident was extremely minor in nature and the underlying condition of hypothyroidism was greater than severe since it caused the worker’s neuropathic pain. To support their position, the employer’s representative referenced medical documents on file, online medical articles indicating thyroid problems can cause neuropathic pain, and Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions regarding the application of cost relief.

Worker’s Position

The worker did not return the Participant Form. They are not participating in the appeal.

Clarification of Review

I acknowledge the employer’s representative provided detailed arguments and documentation to support their objection to the allowance of entitlement for left ankle neuropathic pain. Entitlement for neuropathic pain was approved on July 6, 2021. Since this decision letter was not listed on the Appeal Readiness Form or referred to the Appeals Services Division, I do not have jurisdiction to review this issue and will make no additional comment on the matter. Additionally, the operating area has not reviewed or granted entitlement for an ATFL injury so I will make no further comment on that issue.

Assessment of Entitlement

I find SIEF cost relief is not in order.

Policy 14-05-03 (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 adds that when determining cost relief, consideration is given to the medical significance of the pre-existing condition and the severity of the accident.

I find the severity of the accident to be minor in nature.

When considering the severity of the accident, Policy 14-05-03 (SIEF) provides the following definitions:

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

It is the employer representative’s position that the severity of the accident was minor in nature and would not be expected to cause any degree of injury since the worker and co-workers perform the same task many times without difficulty for their regular job. The representative noted there is no evidence of the worker’s ankle twisting or slipping, and the worker simply lifted half of a patient’s weight (85lbs or 42.5lbs per foot) as part of their regular job.

Information on file supports the employer representative’s position. I reviewed the accepted mechanism of injury and found the work accident was of minor severity, which would be expected to cause a non-disabling or minor disabling injury to any individual. When making this determination I considered the mechanics, positioning and environment of the mechanism of injury.

The worker reported assisting a co-worker with the transfer of a patient weighing about 170lbs. The worker was standing on the patient’s left side while the other nurse was on the patient’s right side. The worker had one arm under the patient’s arm and the worker’s other hand was holding the patient’s wrist. The worker described having their legs shoulder-width apart and knees slightly bent. While the worker was in this position, the patient lifted their legs and dropped their head, becoming deadweight as their body weight dropped on the worker and co-worker. The worker stated they tried to take a step immediately after and heard a popping sound and had excruciating pain in their left foot and ankle.

I find the mechanism of injury describes the presence of factors expected to cause a non-disabling or minor disabling injury. This includes the body weight of the patient suddenly falling onto the worker and unexpectedly putting strain on the worker’s body and joints as they held the patient and maintained stability. I find there is no evidence of factors expected to cause a disabling, or serious disabling injury, such as a slip, twist or awkward movement of the worker’s ankle while under this unexpected additional weight, or a direct impact to the worker’s foot or ankle. As such, I find the severity of the accident to be minor in nature.

I find the period resulting from the accident was not prolonged or enhanced by pre-existing conditions.

Policy 14-05-03 (SIEF) states that when reviewing medical and other information present in the claim file, the decision-maker considers whether the information suggests that a pre-existing condition is present and whether it prolonged or enhanced the work-related disability. The policy adds that 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.

It is the employer representative’s position that the worker’s pre-existing hypothyroidism caused the worker’s neuropathic pain and, because they were unable to locate any literature suggesting the contrary, this underlying condition can only be classified as something more than major. Information on file does not support this position. I find clinical evidence demonstrates multiple medical professionals assessing the worker were aware of the worker’s pre-existing thyroid condition but did not indicate it had any impact on the worker’s compensable injury or recovery.

The family doctor completed a Health Professional’s Progress Report on January 4, 2021. Although the family doctor would reasonably be aware of the worker’s thyroid condition and medications, they selected “No” in answer to the form’s question about whether there was any pre-existing or other conditions/factors that would impact return to work or recovery. Medical reports from February 2021 until September 2021 show the SC clinicians were aware the worker was taking medication for hypothyroidism. However, the clinicians did not state the worker’s compensable condition and impairment was unexpectedly severe or their recovery was prolonged due to this pre-existing condition.

A community physiotherapist reported in June 2021 that the type of injury sustained was a factor delaying the worker’s recovery. Similarly, the SC clinicians identified the neuropathic nature of the worker’s pain as a barrier for recovery within their July 2021 report, explaining this type of pain is difficult to treat. Since the operating area has accepted the left foot and ankle strain and neuropathic pain as work-related, I find these medical reports establish the only factor prolonging the worker’s recovery was the nature of their compensable injuries rather than any pre-existing condition including hypothyroidism.

The employer’s representative argued that Specialty Clinics (SCs) do not offer medical opinions regarding causation and assume work-relatedness because a worker is being seen on behalf of the WSIB. The representative added that just because something is listed under a subheading entitled “occupational diagnosis" does not mean the clinicians are providing a medical opinion that the condition is in fact a result of the compensable accident.

I am unable to accept this argument based on a review of the medical evidence on file. The SC report dated February 16, 2021 specifically documents that the WSIB sought clarification and requested an opinion regarding the occupational diagnosis. In response, the orthopaedic surgeon directed the reader to “Section J”, which states the occupational diagnosis of left lower extremity neuropathic pain. I find this demonstrates the SC clinicians provided an intentional clarification of their opinion that this condition resulted from the compensable accident. The clinicians could have listed this condition under the “Relevant Non-Occupational Diagnosis(es)” subheading or stated it did not result from the work accident in response to the WSIB’s request for clarification but did not do so.

The employer’s representative referenced the July 2020 hospital record indicating the worker’s thyroid stimulating hormone (TSH) level was 0.04, and attached a medical article excerpt indicating a normal range of TSH levels in non-pregnant adult women is 0.5 to 5.0. The representative referenced multiple other medical articles stating thyroid problems including hypothyroidism can cause neuropathic pain. The employer’s representative stated the SC reports do not demonstrate the assessors were aware of the worker’s extremely low TSH levels, and argued the clinicians would have indicated the neuropathic pain resulted from the worker’s metabolic issues if they were aware. The representative added that there should be regard for medical norms, in that it is not necessary for a physician to state the obvious in order for the obvious to be a factor to be considered.

I am unable to accept these arguments for multiple reasons. Although the hospital report documents a low TSH level in July 2020, there is insufficient evidence to support these low TSH levels persisted four months later when the accident and pain occurred, seven months later during the initial SC assessment, or to date. Additionally, even though the worker’s TSH levels are undocumented in February 2021, the SC report confirms the assessors were aware of the worker’s non-occupational medication and dosage for hypothyroidism. With this in mind, I am satisfied the SC clinicians were aware of the worker’s pre-existing thyroid condition but did not indicate this had any impact on the worker’s neuropathic pain or impairment.

To support their position, the employer’s representative referenced WSIAT decisions, which state:

The standard of proof in a Tribunal appeal is the balance of probabilities. In a SIEF appeal, this means that the evidence must demonstrate that it is more likely than not that the underlying condition prolonged or enhanced the worker’s disability resulting from the workplace accident. The severity of the accident and the significance of the pre-existing condition must also be determined based upon direct evidence or reasonable inferences which may be drawn from the evidence.

As I interpret the latter stipulation regarding the medical significance of the pre-existing condition, it implies the significance of the condition is a question of probability, that is; the extent of the likelihood that the injured worker would go on to develop a disability of greater severity than a normal person, given the state of the pre-existing condition.

The employer’s representative argued it was more probable than not that the worker’s hypothyroidism was a major contributing factor, if not the primary cause, of the worker’s neuropathic pain.

I considered all of the referenced WSIAT decisions and the employer representative’s arguments when making my decision. However, I find there is no evidence to demonstrate the worker’s pre-existing condition had any impact on their injury or recovery. Without this evidence, I am unable to establish it was more likely than not that the pre-existing condition prolonged or enhanced the worker’s disability resulting from the workplace accident.

The operating area determined the work accident caused the worker’s neuropathic pain, meaning I am unable to accept the employer representative’s argument that the worker’s hypothyroidism caused this condition or made the worker develop a disability of greater severity than a normal person. I find there is insufficient medical evidence showing the treating clinicians indicated the worker’s condition and impairment was of greater severity than expected considering the accepted mechanism of injury. I also find medical reports identify the nature of the worker’s compensable injury as the only factor prolonging recovery.

For these reasons, I find there is no medical evidence to support the worker’s hypothyroidism or any other pre-existing condition had an impact on enhancing the worker’s disability or prolonging the recovery period resulting from the accident.

I find a pre-accident disability did not cause or contribute to the compensable accident.

Policy 14-05-03 (SIEF) defines a pre-accident disability as a condition which has produced periods of disability in the past requiring treatment and disrupting employment.

I am unable to establish any pre-accident disability caused or contributed to the workplace accident of a patient suddenly lifting their legs and dropping their weight on the worker and a co-worker. Clinical evidence does not establish the worker was receiving active treatment for a pre-existing condition in the time preceding the work accident that had disrupted their employment or stopped the worker from performing their regular duties and hours as a nurse. As such, I find a pre-accident disability did not cause or contribute to the compensable accident.

In accordance with Policy 14-05-03 (SIEF), I find entitlement to SIEF cost relief is not in order because the workplace accident was of minor severity, there is no evidence supporting the worker’s pre-existing conditions enhanced the injury or prolonged the worker’s recovery, and no pre-accident disability caused or contributed to the accident.

CONCLUSION

I find SIEF cost relief is not in order.

The employer’s appeal is denied.

DATED February 3, 2023

Stephanie Waters

Appeals Resolution Officer

Appeals Services Division