WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 717/15

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 717/15 BEFORE: S. Netten: Vice-Chair HEARING: April 10, 2015 at Toronto Written DATE OF DECISION: April 17, 2015 NEUTRAL CITATION: 2015 ONWSIAT 832 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated March 14, 2014 APPEARANCES: For the worker: For the employer: Interpreter: Not participating J. Mandlowitz, 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. 717/15 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 2011 right knee claim. (ii) Overview [2] The worker, then a 38-year-old Office Services Clerk, tripped on a skid and twisted her right knee at work on August 29, She remained at work with accommodations, and had physiotherapy from September 2011 to January Entitlement was accepted for a ligament sprain initially, and subsequently for a meniscus tear. The worker underwent compensable surgery on May 16, 2012, followed by physiotherapy. She returned to suitable modified duties on June 6, 2012 with a period of work hardening, after which a return to regular duties was anticipated. The worker s entitlement to benefits is not at issue in this appeal. [3] The employer sought SIEF relief in March 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. The employer s representative relies upon written submissions sent to the Board on January 20, Those submissions argue that the worker had pre-existing factors which were significant contributing factors to the accident. (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. 717/15 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) Evidence [10] Chart notes from 2009 to 2011 provided by the worker s family doctor, Dr. M. Quraishi, make no reference to the right knee prior to June A right knee sprain and knee osteoarthritis were noted at a visit of June 14, Bilateral knee x-rays of the same date found well-maintained joint spacing and noted a 5 mm ossific loose body posteriorly in the right knee. Dr. Quraishi completed a Health Professional s Report in June 2011, in a previous claim, diagnosing a bilateral knee sprain dating back to late May He noted pre-existing conditions of left knee tendinitis and left foot tendinitis. [11] The Board denied the previous claim on the basis of a lack of connection to work duties. Board memoranda in late June 2011 indicate that the worker treated her right knee with ice, and had been limping for the past month. [12] In the current claim, the Employer s Report of Injury dated September 1, 2011 indicates that the worker iced her knee at work following the injury, on August 29, Dr. Quraishi s chart note for August 30, 2011 noted the fall at work, as well as medial/lateral joint pain and tenderness. He completed a Functional Abilities Form (FAF) on September 14, 2011 outlining restrictions on standing, sitting, lifting, climbing, right knee movements and use of the forklift. [13] Physiotherapist C. Horne s Health Professional s Report of September 21, 2011 included a diagnosis of Right Posterior Cruciate Ligament Sprain (query Tear) and provided restrictions. Physiotherapist S. Desroches queried patella femoral pain syndrome and/or a Baker s Cyst, on November 28, He noted may require diagnostic imaging and clarifying diagnosis as factors delaying recovery in his physiotherapy extension requests in November 2011 and January 2012.

4 Page: 3 Decision No. 717/15 [14] An MRI report dated January 13, 2012 found an obliquely oriented tear through the posterior horn of the medial meniscus, as well as possible ganglion or synovial cysts in the popliteal space and early degenerative changes in the patellar femoral joint. [15] The worker was assessed by orthopedic surgeon Dr. N. Mahomed and physiotherapist I. Cummings, of the Board s Hip & Knee Specialty Program, on March 29, As for relevant prior history, the report noted an anterior knee impaction injury earlier in The report outlined the MRI result, along with a positive McMurray s test (for meniscal tears) and negative Lachman s and anterior drawer tests (for ACL injuries). They diagnosed a right medial meniscus tear, from which the worker continued to have ongoing symptoms. Arthroscopic surgery and medial meniscectomy was recommended, followed by postsurgical rehabilitation. [16] The Operative Report of May 16, 2012 noted grade 2 chondral changes in the patellofemoral compartment, thickening of the anterior fat pad, and grade 3 chondral changes in the medial compartment, all of which were debrided. A large complex tear of the posterior horn of the medial meniscus was resected and repaired. The ACL was intact, as was the lateral compartment and meniscus. In follow-up on May 29, 2012, Dr. Mahomed anticipated full recovery. There is no indication of subsequent complications on file. (v) Entitlement to SIEF relief [17] As noted in section (iii) above, Board policy authorizes entitlement to SIEF relief in two circumstances, the first of which is when a prior disability causes or contributes to the accident. [18] It is not clear whether the work had a pre-accident disability as defined in Board policy. The worker may have had a pre-accident disability, since her right knee sprain in late May or early June 2011 required medical attention and, given that she was reportedly limping, may have disrupted employment minimally. However, even if this was the case, there is no evidence which suggests that this disability caused or contributed to the accident of August 29, 2011, which consisted of tripping on a skid. [19] While the employer s representative has submitted that pre-existing factors contributed to the accident, the text of his submissions argues that these made her susceptible to further injury. I reiterate here that Board policy provides for SIEF relief where a pre-accident disability caused or contributed to the accident, not to the injury. For example, in Decision No. 366/14, the worker s pre-existing heart condition caused his fall from a ladder. As set out in section 2(1) and 13 of the WSIA, the accident is the act, chance event, or disablement by which the worker sustains the injury. Here, the Board accepted the claim on the basis of a chance event (tripping over the skid) and the worker s prior knee sprain did not, on the evidence, cause or contribute to that chance event. [20] I find, therefore, that the worker did not have a pre-accident disability which caused or contributed to her workplace accident. There is no entitlement to SIEF relief on this basis. [21] For a pre-existing condition to lead to SIEF relief, that condition must have prolonged the worker s recovery and the claims period. [22] The worker has been granted entitlement for the meniscal tear, and I must therefore accept as fact that the tear resulted from the trip and fall in August I find no medical support for the proposition that the earlier knee strain made the worker susceptible to the

5 Page: 4 Decision No. 717/15 meniscal tear, but even if there was, this is not sufficient for SIEF relief in the absence of an impact on the claims period following the compensable tear (see, for example, Decisions No. 1030/14, 293/12). [23] The worker in this case also had chondral changes in the patellofemoral and medial compartments, as well as popliteal cysts. While these may have pre-dated the accident, the evidence does not establish that they prolonged the worker s recovery from the compensable meniscal tear. Dr. Mahomed attributed the worker s symptoms solely to her medial meniscus tear, and the worker appears to have recovered as anticipated after its repair. The fact that the surgeon debrided loose cartilage during surgery does not, in and of itself, suggest an enhancement or prolongation of the claim. [24] While the worker s claims period lasted approximately 10 months, the prolongation was largely due to the extended period during which her condition was not accurately diagnosed, as well as the delay in obtaining a specialist consultation and the delay in proceeding with surgery. Once the meniscal tear was identified and surgery was performed, the worker s recovery was straightforward. I conclude, therefore, that the period resulting from the accident was not prolonged or enhanced due to a pre-existing condition. There is no entitlement to SIEF relief on this basis. [25] In the result, therefore, neither of the criteria set out in Board policy on SIEF has been met. The employer s request for SIEF relief is denied.

6 Page: 5 Decision No. 717/15 DISPOSITION [26] The appeal is denied. DATED: April 17, 2015 SIGNED: S. Netten