WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 450/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 450/15 BEFORE: S. Peckover: Vice-Chair HEARING: March 3, 2015 at Toronto Written DATE OF DECISION: March 11, 2015 NEUTRAL CITATION: 2015 ONWSIAT 542 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated March 4, 2014 APPEARANCES: For the worker: For the employer: Interpreter: Not participating R. A. of the Accident Employer Not Required 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. 450/15 REASONS (i) Introduction [1] The employer appeals a decision of the ARO dated March 4, 2014, which concluded that the employer was not entitled to cost relief under the Second Injury and Enhancement Fund (SIEF) provisions. (ii) Issue [2] The issue before me is the employer s entitlement to SIEF relief with respect to the costs of the worker s claim. (iii) Background [3] The following are the basic facts. [4] The worker, born in 1957, began working for the accident employer in 1989 as an inter-city bus driver. On July 7, 2012, he was unloading baggage from the bus. When he pulled on a very large, very heavy duffel bag, he felt a sharp pain in the right shoulder. The initial diagnosis was partial rotator cuff tear and tendonitis (diabetes). By mid-september 2012, the worker had developed a frozen shoulder. He underwent compensable surgery, consisting of a right shoulder arthroscopy, partial glenohumeral joint debridement, subscapularis two-centimetre rotator cuff repair, biceps tendon tenodesis in groove, and subacromial bursectomy and debridement, on May 2, [5] At five months post-surgery, the worker was reported to be not doing well. At eight months post-surgery, his physician opined that he was recovering slower than average, and likely would not be able to return to his regular work. Nevertheless, the worker did begin a graduated return to his regular work on April 27, 2014, with precautions. [6] In a letter dated June 26, 2013, the employer wrote to the Board requesting a review of the file with respect to SIEF relief, noting that the worker was diabetic. In a decision letter dated September 18, 2013, the Case Manager denied the request, finding that there was no evidence of a pre-existing condition that had contributed to the injury or delayed recovery. [7] At the Appeals Branch, in a decision dated March 4, 2014, the ARO reviewed the available medical and other evidence, and concluded that the worker s right shoulder tears and subsequent surgery were consistent with the accident history, which was accepted by the Case Manager as resulting from the July 7, 2012 work injury. While the record showed that the worker had some pre-existing degenerative osteoarthritic changes in the right shoulder, and also had pre-existing diabetes, there was no medical evidence on the record from the treating physicians to support the employer s position that these conditions contributed to the work injury or enhanced or prolonged the worker s recovery. [8] The employer appeals from this decision. (iv) Law and policy [9] Since the worker was injured in 2012, the Workplace Safety and Insurance Act, 1997 (the WSIA) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated.

3 Page: 2 Decision No. 450/15 [10] The Board s authority to establish the Second Injury and Enhancement Fund derives from section 98 of the WSIA, which states: 98 (1) The Board may establish a special reserve fund to meet losses that may arise from a disaster or other circumstance that, in the opinion of the Board, would unfairly burden the employers in any class. [11] Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, Decision No [12] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Package #181 NEER Adjustments DOA as of January 1, 2008; Package #247 SIEF; and Package #300 Decision Making/Benefit of Doubt/Merits and Justice. [13] I have considered these policies as necessary in deciding the issues in this appeal, including Operational Policy Manual (OPM) Document No , entitled Second Injury and Enhancement Fund. This policy provides in part: 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. Both physical and psychological disabilities are included. Guidelines There is no provision in the Act for the Fund to apply to Schedule II employers. In situations where alcoholism plays a role in the causation of an accident, it is not considered to be a pre-existing condition with regard to the application of SIEF relief. The objectives of this policy are to provide employers with financial relief when a pre-existing condition enhances or prolongs a work-related disability. It thereby encourages employers to hire workers with disabilities. Definitions 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.

4 Page: 3 Decision No. 450/15 SIEF-application to employer costs Medical significance of pre-existing condition* Severity of accident** Percentage of cost transfer*** 50% 25% 0% 75% 50% 25% 90%-100% 75% 50% NOTES * 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 : expected to cause non-disabling or minor disabling injury : expected to cause disabling injury : expected to cause serious disability probable permanent disability *** The percentage of the total cost of the claim transferred to the SIEF. (v) Analysis [14] In analyzing a SIEF appeal, Decision No. 1404/11 states: 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. In a SIEF appeal, there is often a lack of direct evidence, and the parties may be drawn into relying upon unsupported assertions and arguments. I find it necessary to emphasize, however, that entitlement for SIEF relief must be demonstrated on the basis of valid evidence or reasonable inferences drawn from the evidence.

5 Page: 4 Decision No. 450/15 [15] I therefore must decide whether it is more likely than not that the pre-existing condition (as defined above) prolonged or enhanced the worker s disability resulting from the workplace accident. [16] On the other branch of the test, I must decide whether it is more likely than not that the pre-existing disability (as defined above) caused or contributed to the workplace accident. [17] If either is true, then the employer is entitled to SIEF relief. [18] In this case, the worker s pre-existing diabetes most likely would be considered a pre-existing disability, as it was diagnosed and was being treated prior to the worker s workplace accident, although the file is silent as to whether the worker lost any time from work as a result of his diabetes. [19] The question thus arises: did the worker s diabetes cause or contribute to his workplace injury? There is a known relationship between diabetes and the incidence of tendonitis and rotator cuff tears, both of which the worker incurred in the workplace accident. I therefore find that the worker s diabetes was a causative factor in the workplace accident. [20] The employer therefore is entitled to SIEF relief. [21] As can be seen from the table of relief found in the Board s SIEF policy, the amount of SIEF relief granted is dependent on two variables: the severity of the accident and the severity of the pre-existing condition. [22] Board policy requires that accidents be characterized as either minor (expected to cause non-disabling or minor disabling injury), moderate (expected to cause disabling injury) or major (expected to cause serious disability, probable permanent disability). In addition to these definitions, the policy suggests that the severity of the accident is to be evaluated in terms of the accident history components, which include mechanics (lift, push, pull, fall, blow, etc.), position (kneeling, standing, sitting, squatting, bending, etc.) and environment (lighting, temperature, weather conditions, terrain, etc.). In determining the severity of accident Decision No. 1021/12 confirmed that the actual injuries are not considered but rather the extent of disability the mechanics of the accident would reasonably be expected to cause. [23] The worker was unloading luggage from its storage location underneath the bus when the accident occurred. He pulled on a large, heavy duffel bag, and felt pain in the shoulder. In my view, this is an activity in which inter-city bus drivers are involved on an ongoing basis, at every stop on their routes. Further, it is likely that the worker placed the same duffel bag into the bus when the owner embarked, without injury. I therefore find that this was an activity that was part of his normal job activities, and that the accident was minor in severity. [24] With respect to the pre-existing disability, Board policy requires that it be characterized as minor, moderate or major. The policy does not define these terms and indicates only 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. These provisions were interpreted as follows in Decision No. 1582/07: I interpret the policy to mean that the medical significance of a pre-existing condition 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. If the extent to which the pre-existing condition made the worker

6 Page: 5 Decision No. 450/15 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. [25] As far as I can tell, the medical information on file is silent as to how long the worker has had diabetes. However, Orthopaedic Surgeon Dr. Roth indicated, in his report dated November 6, 2012, that the worker was taking medication for this condition. Assuming that he has Type II diabetes, this likely means that the diabetes was longstanding, as initially, most Type II diabetes is treated with diet and exercise. [26] The worker s diabetes therefore rendered him something more than slightly more liable to develop a disability of greater severity than a normal person. In this particular case, I am not convinced that it rendered him extremely more liable to do so, as the worker s diabetes did not, up to that point, impair his ability to perform his regular work. The pre-existing disability therefore was moderate in severity. [27] A minor accident and a moderate pre-existing condition lead to 75% SIEF relief to the employer.

7 Page: 6 Decision No. 450/15 DISPOSITION [28] The appeal is allowed as follows: 1. The employer is entitled to 75% SIEF relief. DATED: March 11, 2015 SIGNED: S. Peckover