WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2575/11

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2575/11 BEFORE: B. Kalvin: Vice-Chair HEARING: December 22, 2011, at Toronto Written DATE OF DECISION: December 30, 2011 NEUTRAL CITATION: 2011 ONWSIAT 3036 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) Decision dated October 21, 2010 APPEARANCES: For the worker: For the employer: Interpreter: The worker did not participate M. Senicar, Paralegal N/A 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. 2575/11 REASONS [1] These are the reasons for the decision of the Workplace Safety and Insurance Appeals Tribunal with respect to an appeal by an employer from a decision of the Workplace Safety and Insurance Board (the Board ). The employer appeals the quantum of cost relief it was awarded by the Board under the Second Injury and Enhancement Fund ( SIEF ) in relation to a benefit claim made by one of the employer s worker s. (i) Background [2] The background to this appeal is as follows. The worker is 56 years old. On June 18, 2009, the worker was kneeling on a hardwood floor and hammering nails. When he stood up he felt a sharp pain in his right knee. Four days later, he was assessed at the emergency department of a hospital. An x-ray done at the hospital revealed no significant bony or joint abnormalities. The attending physician reported to the Board that the worker had a sprain or strain, and possibly a ligament injury. The physician prescribed medication and indicated that the worker should do light duties for a week. [3] The worker did not recover as expected and on August 21, 2009, a magnetic resonance image ( MRI ) of his right knee was taken. The MRI revealed that the worker had a tear of the meniscus. The radiologist s impression of that study reads as follows: Very mild degenerative changes are seen medially. Tear of the posterior horn and body of the medial meniscus. [4] In a report dated September 18, 2009, the worker s treating specialist, Dr. J. L. Remus stated that the mechanism of the worker s injury was unlikely to have caused any significant ligamentous or meniscal injury. Dr. Remus stated: The mechanism of his injury is such that the patient could not have sustained a significant ligamentous or meniscal injury but simply more of an anterior soft tissue strain for which the patient should go on to make a full recovery. [5] On December 2, 2009, the worker had arthroscopic surgery on his knee. On January 21, 2010, the treating surgeon, Dr. C. Cullinan described the worker s condition as follows: This 54 year old is in for assessment of his right knee following an arthroscopy. This is a work related injury. He had a partial medial meniscetomy but he also had arthritic changes which were debrided. He complains of pain. He has an antalgic gait. His wounds are healed. There is no sign of infection. He needs a physiotherapy program, but I still feel that he can return to work in six weeks time. [6] On March 11, 2010, Dr. J. L. Remus reported that the worker was complaining of snapping in his right knee. Dr. Remus prescribed orthotics and authorized the worker to return to modified work on a graduated basis. [7] On March 23, 2010, Dr. Cullinan reported that he expected the worker to be able to return to regular duties and full-time hours by the end of April. On May 19, 2010, Dr. Cullinan

3 Page: 2 Decision No. 2575/11 reported that the worker had returned to full time duties, but was still experiencing occasional tightness in his knee. [8] On October 5, 2010, Dr. Cullinan reported that the worker s symptoms had increased and the worker was concerned that he had re-torn his meniscus. Dr. Cullinan stated: He has now developed increasing pain to his right knee which he says is affecting his entire body. He says there is no new injury and he is limited due to his right knee. He says he is still able to do his job His pain seems localized to the medial anterior compartments. He is interested in having an MRI. He feels he may have re-torn the meniscus. I have agreed to so [sic] this and he will return to see me with the results. [9] An MRI done on December 12, 2010, confirmed the worker s suspicion that there was a new tear in the meniscus. The radiologist s report reads as follows: ACP and PCL are intact. The MCL and LCL are intact. Moderate loss of cartilage along the medial tibial plateau is noted. Cartilage along the medial femoral condyle appears intact. Cartilage of the lateral compartment is intact. Cartilage of the patellofemoral compartment shows mild focal 3mm fissure or erosion along the medial patellar facet. Retinacula are intact. Extensor mechanism is intact. No evidence of effusion. The lateral meniscus still appears intact. The medial meniscus shows evidence of partial menisectomy. The posterior horn under-surface shows mild irregularity. There does appear to be a new small peripheral tear along the posterior aspect of the posterior horn with peripheral extension. No other findings are identified. [10] On February 17, 2011, Dr. Cullinan reported that the worker was on the list for another arthroscopy of his right knee. [11] As a result of his knee injury at work on June 18, 2009, the worker made a claim to the Board for compensation benefits. The Board accepted that the worker had sustained a personal injury as a result of a workplace accident, and, accordingly, approved his benefit claim. Further, the Board determined that the worker s compensable accident had resulted in a permanent impairment of his right knee, and therefore, in addition to other benefits he received, the worker was entitled to a non-economic loss award to compensate him for the permanent impairment of his knee. The worker s entitlement to benefits, and the quantum of benefits he received, is not at issue on this appeal. [12] What is at issue in this case is the quantum of relief from the costs associated with the worker s claim under the SIEF. The employer carries on a business activity which is listed in Schedule 1 of the Workplace Safety and Insurance Act (the WSIA ). Although benefits paid to an injured worker of a Schedule 1 employer are paid by the Board and not by the injured worker s employer, the benefits paid by the Board, can, as in other insurance schemes, affect the premiums which the insured, that is, the employer, pays to the Board. Accordingly, where the

4 Page: 3 Decision No. 2575/11 benefits paid to an injured worker are enhanced by factors or conditions which pre-existed the compensable injury, the Board will reduce the cost of the claim which it ascribes to the employer for the purposes of determining the employer s future premiums. This is done through the mechanism of the SIEF. Section 98 of the WSIA gives the Board broad discretionary power to establish a SIEF, which provides financial relief to employers when a pre-existing condition enhances or prolongs a work-related disability. [13] In this case, the Board initially denied the employer s claim for SIEF relief. In a decision dated June 11, 2010, a Board Case Manager wrote the following: I have reviewed the medical information on file. An MRI of the right knee does show evidence of very mild degenerative change medially. This is not considered a significant finding which would have contributed to the injury or ongoing symptoms. I am not satisfied that the recovery has been prolonged in this claim by the pre-existing condition or other factors. [14] The employer objected to the Case Manager s decision and its objection was considered by an Appeals Resolution Officer ( ARO ) in the Board s internal Appeals Branch. In a decision dated October 21, 2010, the ARO allowed the employer s objection. The ARO ruled that worker had a minor pre-existing condition. The ARO concluded further that the worker s accident was a minor one. Under Board policy, where a worker with a minor pre-existing condition has a minor accident, the employer is entitled to relief from 50% of the costs of the claim under the SIEF. Accordingly, the ARO granted the employer entitlement to a 50% SIEF relief. [15] The employer now appeals the ARO s decision to this Tribunal. In written submissions dated May 15, 2011, the employer submitted that the SIEF cost relief be increased from the current 50%. In a subsequent submission dated June 1, 2011, the employer submitted that the significance of the pre-existing condition is greater than minor and that the SIEF cost relief be increased from 50% to 75% or even 90%. (ii) Issue [16] The only issue to be determined on this appeal is whether the quantum of the employer s relief under the SIEF should be changed. (iii) Analysis [17] Section 126 of the WSIA requires this Tribunal to apply Board policy. The Board s policy on the SIEF is set out in Operational Policy Manual Document No and reads, in part, as follows: 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.

5 Page: 4 Decision No. 2575/11 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 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. SIEF-application to employer costs Medical significance of pre-existing condition* Severity of accident** Percentage of cost transfer*** Minor Minor Moderate Major 50% 25% 0% Moderate Minor Moderate Major 75% 50% 25% Major Minor Moderate Major 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.)

6 Page: 5 Decision No. 2575/11 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. [18] Having reviewed the evidence and information contained in the Case Record, I find that the quantum of SIEF relief granted to the employer should be increased. My reasons for this conclusion are as follows. [19] It seems uncontroversial that the worker s accident is best characterized as a minor one. The worker felt pain in his knee after kneeling down to do some nailing on a hardwood floor. The ARO characterized the accident as minor, the employer takes the position that the accident was a minor one, and I agree with those assessments. I turn to the question of how the worker s pre-existing knee condition should be characterized. [20] In my opinion, based on the medical evidence presented in this case, the only viable options for characterizing the worker s pre-existing knee condition are either minor or moderate. Most of the imaging studies revealed either no abnormalities or a mild degenerative condition, however, on occasion, there is mention of a moderate degeneration. The first study of the worker s knee was an x-ray taken four days after his compensable accident. The x-ray report stated that there were no significant bony or joint abnormalities. An MRI performed two months after the workplace injury disclosed the existence of a tear of the medial meniscus, but described the degenerative changes in the worker s knee as very mild. [21] The meniscus tear was repaired by arthroscopic surgery, following which the worker appears to have made a significant recovery, to the point that he was able to return to his preaccident duties. However, his symptoms increased, and a second MRI was performed on December 12, This MRI confirmed the existence of a new tear of the meniscus. The new tear is described as small. Most of the other ligaments and soft tissues are described as being intact. The only other irregularities identified are a mild focal fissure or erosion of the cartilage of the patellofemoral compartment, a mild irregularity of the posterior horn under surface, and moderate loss of cartilage along the medial tibial plateau. [22] There is no medical opinion commenting directly on whether the worker s pre-existing knee condition should be classified as minor, moderate or major. In my view, the findings described in the various reports suggest that the worker s pre-existing condition could be classified as minor, or, at worst, moderate. The employer s representative notes that Dr. Remus commented that the mechanism of the worker s accident could not have resulted in a significant ligamentous or mensical injury, and therefore, presumably, the worker s disability and ongoing knee problems must be attributed, primarily, to a pre-existing knee condition a condition that has now resulted in a new tear of the meniscus. This may well be true. That is, in the absence of the degenerative condition in his knee, the worker s minor accident may not have resulted in a meniscus tear. It is for that reason that the employer has been granted SIEF relief by the Board. While I accept the employer s submission on this point, in my opinion, it makes the case for characterizing the worker s pre-existing condition as a moderate rather than a minor one. However, based on the available medical evidence, I see no basis for classifying the worker s

7 Page: 6 Decision No. 2575/11 pre-existing condition as major. Under the Board s policy, a minor accident combined with a moderate pre-existing condition attracts SIEF relief of 75%. I find that the employer is entitled to SIEF relief at this level.

8 Page: 7 Decision No. 2575/11 DISPOSITION [23] The appeal is allowed. [24] The employer is entitled to 75% SIEF relief. DATED: December 30, 2011 SIGNED: B. Kalvin