WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 242/15

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 242/15 BEFORE: S. Netten: Vice-Chair HEARING: February 2, 2015 at Toronto Written DATE OF DECISION: February 20, 2015 NEUTRAL CITATION: 2015 ONWSIAT 416 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated October 15, 2013 APPEARANCES: For the worker: For the employer: Interpreter: Not participating M. Senicar, Paralegal None Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 242/15 REASONS (i) Issue [1] The issue to be determined in this appeal is the quantum of Second Injury and Enhancement Fund (SIEF) relief granted to the employer in respect of the costs of the worker s 2009 knee claim. (ii) Overview [2] The worker, then a 56-year-old registered nurse, fractured her right kneecap upon falling at work on March 27, She underwent surgery in March and April 2009, returned to modified part-time duties in July 2009, had hardware removal surgery in December 2009, and resumed full-time duties in January The worker s entitlement to benefits is not at issue in this appeal. [3] An Appeals Resolution Officer (ARO) of the Board found that the employer was entitled to SIEF relief as the worker s recovery was prolonged by virtue of the second surgery in April The ARO granted 50% relief based upon a moderate pre-existing condition and a moderate accident. [4] The employer appeals the SIEF quantum to the Tribunal. This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. In written submissions dated December 9, 2014, the employer s representative argues that the severity of accident was minor, and the pre-existing condition, being the cumulative effect of multiple conditions, was major. (iii) Law and policy [5] The Workplace Safety and Insurance Act, 1997 ( WSIA ) applies to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. Section 126 requires the Tribunal to apply Board policy when making its decisions. [6] The standard of proof applicable in SIEF appeals is the balance of probabilities, and the burden of proof rests with the claimant: see Decision No. 197/12. [7] The SIEF was initially created in 1978, pursuant to section 108(2) of the Workers Compensation Act. This provision, continued in section 98 of the WSIA, gives the Board broad discretionary power to establish a reserve fund to meet losses arising from circumstances that would unfairly burden the employers. Board policy on the SIEF, found in Operational Policy Manual (OPM) Document No , states: Policy 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. Definitions Pre-accident disability is defined as a condition which has produced periods of disability in the past requiring treatment and disrupting employment.

3 Page: 2 Decision No. 242/15 Pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest post-accident. [8] A matrix found in the SIEF policy assigns a percentage of cost transfer based upon the medical significance of the pre-existing condition and the severity of the accident: SIEF-application to employer costs Medical significance of preexisting condition* Minor Moderate Major NOTES Severity of accident** Minor Moderate Major Minor Moderate Major Minor Moderate Major Percentage of cost transfer*** 50% 25% 0% 75% 50% 25% 90%-100% 75% 50% * 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. With psychological conditions, the possibility of prior psychic trauma resulting from life experience could be considered as evidence of vulnerability, and justify recommending relief to the employer, even in the absence of pre-existing psychological impairment. ** The severity of the accident is evaluated in terms of the accident history and approved definitions. Accident History Components mechanics (lift, push, pull, fall, blow, etc.) position (kneeling, standing, sitting, squatting, bending, etc.) environment (lighting, temperature, weather conditions, terrain, etc.) Definition Severity of Accident 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 percentage of the total cost of the claim transferred to the SIEF. [9] In this appeal, the questions to be determined in assessing the correct quantum of relief are the severity of the accident and the medical significance of the pre-existing condition(s). (iv) Severity of the accident [10] The worker did not complete a Report of Injury. The Employer s Report of Injury dated March 30, 2009 describes the accident as follows:

4 Page: 3 Decision No. 242/15 Fall Right Knee States she slipped on some water on the floor and fell on right knee and then heard a crack sound. States she was walking to the desk. [11] Similarly, the initial medical report from orthopedic surgeon Dr. H. Ling noted an injury sustained last night at work when she slipped on a wet floor. [12] Pursuant to Board policy, accident severity is determined in consideration of the extent to which the accident components (mechanics, position and environment) would be expected to cause disabling injury. As stated in Decision No. 1021/12, the actual injuries are not considered, but rather the extent of disability the mechanics of the accident would reasonably be expected to cause. Disability is elsewhere defined in the SIEF policy as a condition requiring treatment and disrupting employment. I agree with and adopt the comments of the Vice-Chair in Decision No. 1404/11: According to Board policy, a minor accident is expected to cause non-disabling or minor disabling injury. I construe this to mean that a worker involved in a minor accident would be expected to return to work immediately, or at most, a day or two later. In my view, a moderate accident is one that would reasonably be expected to cause some disability in the form of several days or weeks off from work, or a period of modified work. The policy does not define the length of the expected disability associated with a moderate accident, although it is implied in the definitions of moderate and major that a moderate accident is not expected to cause permanent disability. This approach is consistent with the interpretation adopted in Decision No. 529/07. [13] The employer s representative points to an example found in Board policy titled Aggravation Basis (OPM Document No ), in which a worker who fell off a scaffold suffered a moderately severe back injury. This example is not relevant to the present inquiry, as it describes an actual rather than expected injury, and does not purport to characterize the accident for SIEF purposes. [14] In this appeal, the accident mechanics, position and environment consisted of a slip and fall, from a walking position, onto the right knee, on a wet indoor floor. Tribunal jurisprudence often characterizes a straightforward slip and fall as a minor accident, in contrast to a fall complicated by other factors such as falling from a height or running position, on uneven terrain, or with a twisting of the knee or ankle (see, for example, Decisions No. 1995/14, 813/05, 1238/07, 865/14, 2275/12 and 743/01). I consider the worker s accident to have been a straightforward though unexpected fall, and agree with the employer s representative that such a fall would not have been expected to cause anything beyond a minor disabling injury, possibly resulting in a brief absence from work. Accordingly, I classify the accident as minor in severity. (v) Significance of the pre-existing condition [15] I note first that there has been no suggestion, nor is there any evidence of, a pre-existing disability in this case, being a condition which has both required treatment and disrupted employment. In this appeal, SIEF entitlement has been granted, pursuant to Board policy, because the period resulting from the accident was prolonged due to a pre-existing condition or conditions.

5 Page: 4 Decision No. 242/15 [16] The sequence of events in this claim is as follows: March 27, 2009: date of accident March 28, 2009: right patella open reduction and internal fixation based upon diagnosis of right patella fracture April 14, 2009: repeat right patella open reduction and internal fixation due to fracture displacement July 20, 2009: return to modified duties on graduated hours December 2 and 7, 2009: reduction of hours due to flare-up of knee pain December 15, 2009: removal of hardware based upon healed fracture and hardware irritation January 12, 2010: return to part-time duties January 25, 2010: full-time duties [17] The worker s recovery and return to work were substantially delayed by two factors: the initial surgery failed, requiring a second surgery and delaying rehabilitation by a number of weeks; and, the worker experienced irritation from the hardware yet it could not safely be removed until eight months post-surgery. The latter situation has not been associated with any pre-existing condition and was anticipated: Dr. Ling s initial consultation report on March 28, 2009 indicated that the internal fixations are likely to cause irritation and may necessitate removal of hardware. [18] Accordingly, I must determine the significance of the pre-existing condition(s) associated with the need for the repeat surgery in April [19] The worker s underlying conditions include diabetes, osteoporosis, and three types of arthritis. Dr. Ling noted on March 28, 2009 that the worker has long-standing type 1 diabetes. On April 13, 2009, when Dr. Ling discovered the patellar fracture displacement, he stated the causes for this may be a combination of her soft bone or the K-wires bending. Following the repeat surgery on April 14, 2009, Dr. Ling noted post-operative diagnoses of osteoporosis, loosening of the K-wire. In May and June 2009, the worker s physiotherapists listed osteoarthritis, psoriatic arthritis and rheumatoid arthritis as factors which may affect the worker s recovery. [20] The employer s representative solicited an opinion from orthopedic surgeon Dr. H. Weinberg. Dr. Weinberg s report, dated July 4, 2013, states that each of the identified pre-existing conditions contribute to increased fracture risk. However, the possibility of a predisposition to fracture is not relevant to the inquiry into the significance of pre-accident conditions which prolonged the claim. [21] With respect to diabetes, Dr. Weinberg also asserts that this affects fracture healing at a cellular level and thus increases the risk of delayed union or non-union following trauma. In this worker s case, however, there is no indication in the medical documentation that the worker s fracture healing was delayed. Thus, I do not find the worker s underlying type 1 diabetes to have prolonged her recovery, and consequently this is not a relevant pre-existing condition for SIEF purposes.

6 Page: 5 Decision No. 242/15 [22] Secondly, Dr. Weinberg was asked what impact would the varying types of arthritis have, and responded only that there is an association between arthritis and fracture risk. No association with prolonged recovery was posited. As noted above, the extended duration of the claim was attributable to the first failed surgery and, mainly, to the long wait prior to hardware removal. While the worker s physiotherapists noted the underlying arthritic conditions as possible factors, there is no indication in the file materials that the worker s rehabilitation was in fact delayed due to osteoarthritis, psoriatic arthritis or rheumatoid arthritis. Accordingly, these are also not relevant pre-existing conditions for SIEF purposes. [23] As for the osteoporosis, Dr. Weinberg s report states: The second surgery performed on April 14, 2009 noted a post-operative diagnosis of osteoporosis and loosening of the K-wires. What is the medical significance of the diagnosis of osteoporosis provided in the operative report? This would indicate that the Worker had pre-existing osteoporosis which would be a factor in the failure of the initial fixation of the fracture. [24] In light of the consistent evidence from Dr. Ling and Dr. Weinberg in this respect, I find that the worker s underlying osteoporosis likely contributed to the inadequate fixation and need for further surgery, and the corresponding prolongation of her recovery. The worker s osteoporosis is the only relevant pre-existing condition for SIEF purposes. [25] Tribunal jurisprudence has interpreted the language of the SIEF policy to mean that the medical significance should be considered to be minor if it made the worker slightly more liable to develop a disability of greater severity than a normal person, and that it should be considered major if it made the worker extremely liable to develop a disability of greater severity than a normal person (see, for example, Decision No. 1635/07). If the extent to which the pre-existing condition made the worker more liable to develop a disability of greater severity than a normal person was more than slight, but less than extreme, the medical significance of the pre-existing condition could be considered moderate. In consideration of the role of the osteoporosis in the initial failed surgical repair, I find the pre-existing condition to be more than slight, but no more than moderate: the worker was somewhat more liable to develop greater disability as a result of the interplay between weakened bone and the internal fixation. The hardware irritation and need to wait for its removal had much greater significance in extending the worker s disability. (vi) Conclusion on SIEF quantum [26] I have found that the accident severity was minor and the significance of the pre-accident condition was moderate. In these circumstances, Board policy provides for a cost transfer of 75%. (vii) NEER adjustment [27] The employer's representative has requested that the Tribunal direct the Board to make a retroactive adjustment to the employer s NEER record if the SIEF quantum is increased. [28] The New Experimental Experience Rating Plan, or NEER, operates pursuant to section 83 of the WSIA, to encourage employers to reduce injuries and encourage return to work. Premiums are increased or decreased based on the employer s accident cost experience, using retrospective rating over a specified period. It is generally accepted that the Tribunal has

7 Page: 6 Decision No. 242/15 jurisdiction over NEER adjustments in the context of SIEF appeals (see, for example, Decisions No. 708/07, 162/99R, and 1263/97). [29] Board policy titled Adjustments to NEER Refunds and Surcharges, applicable to accidents occurring after January 1, 2008 (OPM Document No , dated July 15, 2011) states that the Board calculates the final NEER refund or surcharge for a given accident year on September 30 of the fourth year following the accident year. For the claim under appeal, the NEER window closed on September 30, [30] The NEER policy states that the Board may adjust the final refund or surcharge if it is made aware of an error during the following year. The policy defines such errors as clerical (i.e., typographical); data processing (i.e., computer generated); or an omission (i.e., failure to process or act upon a decision). While I have varied the Board s decision on the quantum of SIEF relief on appeal, this does not constitute a Board error as defined by the policy. [31] I note that the employer s representative refers in his submissions to the Board s failure to act upon an early operational level decision to grant 50% SIEF relief, in August While this may have supported the employer s request in October 2013 (within a year of the final review) for a retroactive NEER adjustment to reflect that 50% relief, 1 it does not provide a basis for a retroactive NEER adjustment to reflect an increase to 75% relief resulting from this decision in February [32] The NEER policy further states that adjustments may be made in the case of retroactive changes to classification and insurable earnings, a court judgment, or a reversal of entitlement. None of these circumstances are present in this appeal. [33] Nevertheless, it is now well accepted in Tribunal case law that notwithstanding the Board s policy, there may be situations where a retroactive adjustment of a NEER account can be granted. Board policy titled Merits and Justice (OPM Document No ) states: Exceptions to relevant policies There may be rare cases where the application of a relevant policy would lead to an absurd or unfair result that the WSIB never intended. Therefore, a decision-maker may depart from a policy if it can be shown that the case has exceptional circumstances that justify doing so. [34] In determining an appeal on the real merits and justice, Tribunal decisions have found that the question to be asked is whether the application of the policy criteria to a particular employer results in manifest unfairness, which, because of exceptional circumstances, merits a waiver of the usual rules governing retroactive adjustments (see for example Decision No. 1085/98). In determining what constitutes exceptional circumstances in the context of a NEER adjustment, decisions of the Tribunal have found that the following factors may be considered (see for example Decision No. 591/94): 1. Whether the employer had acted with due diligence in pursuing a SIEF claim after the employer knew, or ought to have known, of a prolonged recovery period or enhanced disability; 1 The case materials before me do not indicate the outcome of the employer s efforts to obtain a retroactive NEER adjustment for the 50% cost transfer granted in September This issue was not addressed by the ARO and is not under appeal to the Tribunal.

8 Page: 7 Decision No. 242/15 2. The nature of the disability - i.e. whether it involved a longer than usual recovery period; whether it involved a complex condition which made diagnosis and treatment difficult; or whether the pre-existing condition was unknown; 3. Whether systemic delay resulted in a final decision outside the three-year [now fouryear] window, and 4. The elapsed time between the NEER cut-off date and the final SIEF decision because a longer elapsed time period could mean a more complex adjustment. [35] I agree that these factors are useful in assessing whether an exception to Board policy on NEER adjustments is warranted. [36] However, in consideration of the above-cited factors, I do not find exceptional circumstances that merit a waiver of the usual rules governing retroactive adjustments: The employer did not exercise due diligence in requesting SIEF after knowing of a prolonged recovery period. The employer was actively involved in the worker s return to work as well as the administration of partial LOE benefits (which required regular submission of pay records). On December 2, 2009 the Occupational Health and Safety officer complained to the Case Manager that the claim was getting old and expressed frustration at the continuing need for modified duties. Yet, a request for SIEF relief was not made until December 4, 2012, a full three years later. The nature of the injury was not unusually complex. Systemic delay was not responsible for this decision (or the ARO decision) issuing beyond the four-year timeframe. The employer s request for SIEF relief was made only nine months prior to closure of the NEER window in September After the Board s initial denial in February 2013, the employer waited a further four months before soliciting an independent medical opinion. The representative s submissions to the ARO, although dated July 15, 2013, appear to have been faxed to the Board on August 22, 2013, a month before the closure of the NEER window. The elapsed time between the NEER cut-off date and this final decision, at 17 months, is not brief. [37] As a result, retroactive adjustment to the employer s NEER record is not warranted.

9 Page: 8 Decision No. 242/15 DISPOSITION [38] The appeal is allowed in part. [39] The decision of the Board on the quantum of SIEF relief is varied to 75% SIEF relief in respect of the costs of the worker s 2009 knee claim. [40] The employer is not entitled to a retroactive NEER adjustment. DATED: February 20, 2015 SIGNED: S. Netten