SUMMARY. Second Injury and Enhancement Fund [SIEF] (preexisting condition).

Transcription

1 SUMMARY DECISION NO. 346/97 Second Injury and Enhancement Fund [SIEF] (preexisting condition). The employer appealed a decision of the Appeals Officer denying entitlement to SIEF relief relating to a back injury suffered by the worker. The Panel found that the accident was minor and that the period of disability resulting from the accident was prolonged by the worker's preexisting leukemia. The employer was entitled to 75% SIEF relief. The appeal was allowed. [5 pages] PANEL: Marafioti; Anderson; Nipshagen DATE: 02/06/97

2 WORKERS COMPENSATION APPEALS TRIBUNAL DECISION NO. 346/97 [1] This appeal was heard in Ottawa on April 4, 1997, by a Tribunal Panel consisting of: V. Marafioti : Vice-Chair, G.M. Nipshagen : Member representative of employers, J. Anderson : Member representative of workers. THE APPEAL PROCEEDINGS [2] The employer appeals the decision of Appeals Officer J. Mackin, dated February 12, That decision denied the employer Second Injury and Enhancement Fund (SIEF) relief in this claim. [3] The employer was represented by D.A. Forsyth, Mason-Kemp Ltd. The worker is deceased and his wife chose not to participate. THE EVIDENCE [4] The Panel had before it the Case Description (Exhibit #1) and Addendum #1 to the Case Description dated March 4, 1997 (Exhibit #2). [5] Oral submissions were heard from the employer s representative. THE NATURE OF THE CASE [6] The issue for this Panel to determine is whether the worker is entitled to SIEF relief. THE PANEL S REASONS (i) Background [7] On November 15, 1991, the worker, a bricklayer, suffered a low back strain, left shoulder tendonitis and bilateral tennis elbow while bending steel reinforcement rods. The claim was accepted and lost time benefits were paid from November 22, 1991, to May 19, The worker died of leukemia on July 24, 1992, with his estate receiving a Non-Economic Loss (NEL) award of $9, according to the record. [8] On March 15, 1995, the Claims Adjudicator denied the employer s request for SIEF relief. The Appeals Officer also denied the employer s request accepting the medical opinions of Dr. J. Martinho and Dr. Richardson, the Board Medical Adviser. [9] While the worker was employed with the accident employer he was receiving treatment for leukemia. In addition the worker had a previous fracture of the left clavicle. The employer maintains

3 Page: 2 Decision No. 346/97 that these conditions prolonged or enhanced the worker s compensable injuries, and therefore SIEF relief is in order. (ii) The legislation and Board policy [10] The Panel considers the Board policy on Second Injury and Enhancement Fund (SIEF) to be applicable in this case. This policy is contained in the Claims Adjudication Branch Procedure Manual Documents # , # , # and # and the Operational Policy Manual Document # Document # states: 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. [11] The Board policy Document # also defined a pre-existing disability as a condition which has produced periods of disability in the past requiring treatment and disrupting employment. A pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest post-accident. [12] In arriving at a decision the Panel considered the Board policy in the context of the applicable sections of the Act. (iii) The employer s submissions [13] Mr. Forsyth, on behalf of the employer submits that the Board failed to take into account the impact of this worker s non-compensable medical condition in this claim. The representative submits that the severity of the disability expressed, is not in keeping with the accident history. The representative notes that the symptoms of a worker suffering from leukemia are intertwined with the range of symptoms claimed by the worker resulting from the work accident. In this case there is unequivocal evidence, according to the representative, that the worker had musculoskeletal aches and a fracture of the left clavicle before the accident. Based on the available evidence, the representative submits that the worker s reported symptoms could also be attributed, according to the medical literature, to this worker s leukemia condition. The representative submits that the history and nature of the accident alone would not account for the length of this claim. The representative notes that in fact the worker passed away within six months of the compensable injury as a result of his leukemia. (iv) The Panel s findings [14] The Panel notes that the worker injured his back at work on November 15, The Panel accepts that the worker was already under medical treatment and medication for leukemia at the time of his accident. [15] The Board maintains a Second Injury and Enhancement Fund from which employers may be granted relief of all or part of the costs of a claim under certain circumstances. A condition under which relief can be considered include situations in which the compensable condition is enhanced by the presence of an underlying condition, or where an underlying condition is itself the cause of the accident. 2

4 Page: 3 Decision No. 346/97 The Panel is satisfied that this case represents a situation where the worker s back injury was in fact aggravated by the worker s pre-existing fracture of the left clavicle and his acute leukemia from which the worker died six months after the accident. The Panel is persuaded by the nature of the accident that the worker s pre-existing condition did prolong and enhance the worker s back claim. [16] The worker relates his lower back and left shoulder problems to straightening steel rods while laying the concrete blocks on November 15, The worker continued to work however and received medical treatment on November 20, 1991, for low back and shoulder pain. The worker subsequently laid off work as he could not continue due to his pain. He in effect worked for the accident employer for only the period October 28, 1991, to November 22, The worker continued on benefits until May 19, 1992, at which time the worker was deemed fit to return to work on modified duties. The worker did not return to work however, due to the non-compensable condition of leukemia. [17] The Panel notes that the injured worker has been a bricklayer for several years and has admitted on record that he has often straightened steel rods and never had prior similar problem in the 20 years he had performed the duties. The Panel notes that the worker delayed in seeking medical attention, delayed in reporting his injury and delayed in laying off work. The Panel is satisfied that the injury was minor in nature and produced a strain which should have resolved much sooner than it did were it not for the leukemia. [18] The Panel notes that Dr. V. Martinho was the treating physician in this case. This doctor does confirm in his report of December 9, 1993, that the worker was being treated for leukemia. Dr. Martinho however attributed the worker s problems to the compensable back injury. But, Dr. Lafleche to whom the worker was referred for consultation, makes no mention of the worker s leukemia problems at all in his reporting. It is not clear whether Dr. Martinho advised Dr. Lafleche of this condition. Perhaps Dr. Martinho in his desire to assist the worker with his workers compensation claim neglected to clearly inform Dr. Lafleche of the leukemia. Based on the available evidence, however, we accept that the worker s back symptoms as reported could also be attributed, according to the medical literature, to this worker s leukemia condition. [19] The Panel is satisfied that the leukemia was a significant disability in this worker s life eventually causing his death in July of The Panel is persuaded that given the significance of the leukemia in this worker s condition and the minor nature of the worker s work-related accident the employer is entitled to SIEF relief. The Panel is satisfied that the worker suffered a strain which caused a minor disabling injury with complete recovery. The Panel is satisfied however, that the leukemia, a prior disability, has contributed significantly to the prolongation of the worker s claim. [20] The Panel has reviewed the medical reporting and finds the reports from Dr. Martinho in particular, as clearly minimizing the worker s leukemia condition given the fact that the worker died as a result of this condition in July of The Panel is satisfied that the leukemia contributed to the compensable accident and prolonged and enhanced the worker s claim and the employer is therefore entitled to relief under the SIEF criteria. 3

5 Page: 4 Decision No. 346/97 THE DECISION [21] The appeal is allowed. The Panel finds that this employer is entitled to 75% cost relief in this claim. DATED: June 2, 1997 SIGNED: V. Marafioti, G. M. Nipshagen, J. Anderson 4