WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 492/16

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 492/16 BEFORE: S. Netten: Vice-Chair HEARING: February 5, 2016 at Toronto Written DATE OF DECISION: March 2, 2016 NEUTRAL CITATION: 2016 ONWSIAT 551 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated July 14, 2014 APPEARANCES: For the worker: For the employer: Interpreter: Not participating M. Woo, 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. 492/16 REASONS (i) Issue [1] The issue to be determined in this appeal is the employer s entitlement to Second Injury and Enhancement Fund (SIEF) relief in respect of the costs of the worker s benefits for a left shoulder claim. (ii) Overview [2] The worker, a drywall installer, was granted entitlement in June 2013 for a work-related left shoulder and left upper arm gradual onset injury. The accident date was established as December 28, It appears that the worker received loss of earnings benefits from May 30 to June 3, 2013, but otherwise remained at work either on regular or modified duties. The employer did not pursue its objection to the entitlement decision. A permanent left shoulder impairment was recognized by the Board in March 2014, and the worker received a 4% non-economic loss award for impingement syndrome. The employer was unable to provide permanent modified work from April 4, 2014, and the worker secured other employment shortly thereafter. The worker s entitlement to benefits is not at issue in this appeal. [3] The employer requested SIEF relief in November This request was denied at the operational and appeals levels of the Board. The employer now appeals to the Tribunal. [4] This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. In written submissions dated July 21, 2015, the employer s representative relies upon findings in a March 2012 MRI to support a moderate pre-existing left shoulder condition that prolonged the worker s recovery. He seeks 75% SIEF relief based upon a minor accident and moderate pre-existing condition. (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. Both physical and psychological disabilities are included.

3 Page: 2 Decision No. 492/16 Guidelines The objectives of this policy are to provide employers with financial relief when a preexisting 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. [8] Hence, Board policy authorizes entitlement to SIEF relief when: (a) the worker had a pre-existing disability which required treatment and disrupted employment pre-accident, and that disability causes or contributes to the accident, or (b) the worker had an underlying or asymptomatic condition which becomes manifest post-accident, and that condition prolongs or enhances the recovery or claims period. [9] After one of these conditions precedent is met, the level of SIEF relief is determined. 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. (iv) Entitlement to SIEF relief [10] Left shoulder impingement was diagnosed by chiropractor Dr. H. Candelaria on December 29, The history included pain after lifting, and there was no prior injury or accident in the left shoulder. A further ultrasound of January 19, 2012 found new mild subacromial/subdeltoid bursitis and no other findings. An x-ray of that date noted subtle irregularity of the distal clavicle which could relate to early resorptive change relating to distal clavicular osteolysis. An MRI of March 10, 2012 found tendinosis of the supraspinatus and infraspinatus, a laterally downsloping acromion, and subacromial subdeltoid bursitis, suggestive of impingement. The superior glenoid labrum was separately noted to be irregular in keeping with degenerative change. Symptoms of rotator cuff tendinopathy were noted by an unspecified health practitioner on March 27, [11] In September 2013, orthopedic surgeon Dr. S. Gallay diagnosed left shoulder chronic subacromial bursitis and impingement, partially recovered with no further recovery expected. There was no prior history. As for the imaging, the x-rays were noted to show only a slightly [sic] irregularity of the distal clavicle and the MRI findings were consistent with subacromial impingement. [12] The employer s representative asserts that degenerative change in the labrum is a moderate pre-existing condition that prolonged the worker s recovery.

4 Page: 3 Decision No. 492/16 [13] The employer bears the evidentiary burden of establishing its case on a balance of probabilities. As noted in Decision No. 585/08: Medical evidence is necessary to establish that the worker s condition was prolonged or enhanced by a pre-existing condition. This finding cannot be made based only on the assertions of the employer s representative. [14] In this appeal, the worker s compensable condition is a left shoulder impingement syndrome which has become chronic. While I accept that the worker likely had pre-existing degenerative change in the superior glenoid labrum (as well as distal clavicle osteolysis), there is no medical evidence before me which suggests that this prolonged the worker s recovery from rotator cuff tendinopathy or subacromial bursitis and impingement. Accordingly, I find on a balance of probabilities that the worker did not have a pre-existing condition which prolonged or enhanced the recovery or claims period. Furthermore, there has been no suggestion that the worker had a pre-existing left shoulder disability which required treatment and disrupted employment pre-accident. Pursuant to Board policy, the employer is not entitled to SIEF relief.

5 Page: 4 Decision No. 492/16 DISPOSITION [15] The appeal is denied. DATED: March 2, 2016 SIGNED: S. Netten