WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 793/15

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 793/15 BEFORE: G. Dee: Vice-Chair HEARING: April 9, 2015 at Toronto Written DATE OF DECISION: July 7, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1487 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated October 23, 2013 APPEARANCES: For the worker: For the employer: Interpreter: N/A Staff representative 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. 793/15 REASONS (i) Issue [1] The employer seeks an increase in the Second Injury and Enhancement Fund (SIEF) relief that it has been granted in respect of an injury to one of its workers on September 21, (ii) Background [2] The worker injured his low back on September 21, The worker required surgery on his low back in March [3] The employer has received 25% relief from the costs of the claim for experience rating purpose pursuant to the WSIB s Operational Policy Manual (OPM) Document No based upon findings by an Appeals Resolution Officer that the worker had a minor pre-existing condition and experienced an accident of moderate severity. (iii) Analysis (a) The worker s pre-existing condition [4] Pursuant to OPM Document No : 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. [5] The employer relies primarily on two factors when it asserts that the worker had a major pre-existing condition. [6] First, the worker indicated in his initial reporting to the WSIB following September 21, 2010 that his injury started when he lifted a heavy object at work in July The employer has confirmed that the worker reported such an incident on July 19, 2010 when he felt pain in his groin and back. The worker apparently did not seek immediate medical attention following this incident but did eventually seek treatment prior to the accident the WSIB recognized on September 21, The WSIB did not establish a separate claim for the July 19, 2010 incident given the lack of immediate medical attention but instead simply accepted that an accident had occurred on September 21, [7] Second, diagnostic testing of the worker s low back in the period following September 21, 2010 demonstrated disc bulges and disc herniations as well as spinal stenosis in the lumbar region. [8] In evaluating the nature of the worker s pre-existing condition I find that worker had a moderate pre-existing condition. [9] The significance of the worker s initial accident on July 19, 2010 is difficult to evaluate given the lack of detailed information about this incident. [10] The incident was significant enough for the worker to report to his employer but the worker did not seek medical treatment at the time of the accident. When the worker first saw a doctor following his accident it was not until September 7, 2010, it was with respect to a spasm pain in his left leg of approximately one week s duration. The clinical notes of the examining doctor do not mention either the worker s low back or his groin. However, although the

3 Page: 2 Decision No. 793/15 diagnostic testing included x-rays and blood flow exams for the worker s left leg, it also included a testicular ultrasound and a resulting diagnosis included a possible assessment of epididymitis/strain. [11] Based upon this medical evidence it would be difficult to attribute the worker s complaints on September 7, 2010 to the lifting incident of July 19, [12] It is, however, significant in my view that the worker, when he first claimed workers compensation benefits following his accepted September 21, 2010 accident, attributed the initial onset of his back pain to the earlier lifting incident. [13] Given the lack of medical treatment, the lack of job modifications, and the lack of any mention of the worker s low back in the medical reporting of September 7, 2010, I do not accept that it has been established that the worker s earlier accident was anything more than a minor discomfort in the days preceding his accident of September 21, The pain was significant enough for the worker to attribute the start of his back pain to the July accident but not significant enough to actually seek out either medical treatment for the low back or modified job duties prior to September 21, [14] On the other hand, the MRI exam of October 20, 2010 demonstrates that a pre-existing congenital stenosis interacted with an acquired injury to result in a nerve root impingement. [15] Based upon the operative report of March 14, 2011, it would appear that the worker s major source of his back and leg pain was a focal protuberance of disk that was causing compression of the S1 nerve root and a left L4-S1 microdiskectomy was performed to decompress the nerve root. Although there had been pre-operative imaging of the worker s lumbar region that demonstrated changes at the L4-5 level, the operative report described a disk bulge at that level was described as generalized and did not appear to be compressing the traversing L5 nerve root in any way. [16] The pre-operative MRI exam of October 20, 2010 described the condition of the worker s back as follows: Moderate degenerative disease present at L4-L5 and L5-S1. At these levels, there is mild to moderate combined congenital and acquired spinal canal stenosis. There is a left paracentral L5-S1 nonsequestered disc extrusion on a background of the disc bulge, compressing the traversing left S1 nerve root. There is moderate left L5-S1 neuroforaminal stenosis with impingement of exiting left L5 nerve root. In addition, there is a circumferential disc bulge present at L4-L5 with bilateral lateral recess stenosis, greater on the left with possible contact of the traversing left L5 nerve root at the subarticular zone. [17] Given the existence of a congenital stenosis that contributed to the worker s level of post-injury impairment but given also the lack of any significant pre-injury impairment or disability, I would classify the worker s pre-existing condition to be of moderate severity. (b) The accident severity [18] In measuring the severity of the compensable accident Board policy Document No (20-Feb-2006) provides as follows: 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

4 Page: 3 Decision No. 793/15 [19] The WSIB accepted the worker s claim as it accepted that the worker had pulled more skids than usual while preparing for a sale. The accident was therefore a disablement type injury and not one that was attributed to a single event. [20] The policy definition of severity of accident does not allow for an obvious application in this type of disablement injury but previous WSIAT decisions have attempted to interpret the policy as it is applied to disablement injuries. [21] In Decision No. 529/07 the following was stated: This appeal raises the question of what is meant by the use of the word expected in the Board s SIEF policy, especially in the context of a disablement claim. In the case of a disablement, the worker often suffers a gradual onset of injury while doing his or her regular job. The question is whether expected in this context means likely or probable in the usual sense. If injury were probable, the work would be unsafe per se and likely outside regulatory requirements. As the employer representative submits, in most cases of gradual onset injury, the work results in only a possibility of injury. Therefore, if expected means probable, then, on this interpretation, generally, a gradual onset injury would almost always be considered unexpected, and the result of a minor accident. However the SIEF policy does not stipulate that all disablements should be found to be the results of minor accidents. I consider it likely that the Board would have specified this, if that had been the intent of this wording. I note that in Decision No. 877/01, the Vice-Chair found that a disabling injury was not expected because if a work activity was expected to cause disabling injury, this would raise health and safety concerns. However, in Decision No. 567/97, a Vice-Chair found that a disablement was the result of a moderate accident. The Vice-Chair found that accidents leading to disablements might be assessed as being of different severity depending on the length of time required to trigger an overuse or repetitive strain injury. In addressing this issue, in a disablement claim, I do not consider it reasonable to interpret the word expected to mean that injury is probable. I interpret it to mean only that an injury of the type experienced is reasonably possible, or not unexpected. The worker worked for seven years as a sewing machine operator, with ongoing repetitive movements of her shoulders. I do not find it unexpected that she suffered tendonitis or even a rotator cuff tear. While permanent impairment might not be expected, this work is recognized as involving risks for these types of injuries. The definition of an accident of moderate severity is of one expected to cause disabling injury but not necessarily permanent disability. I agree with the ARO that the accident was of moderate severity. [22] In this case the worker was a material handler who was handling a greater number of skids than he was used to. Although the movement of the skids was mechanically assisted, there was effort required to maneuver around turns on the route. [23] In my view, an injury of the type sustained by the worker a low back strain must be regarded as reasonably possible when performing work requiring material handling, especially when the work is being performed on a more frequent basis than is usual. [24] I therefore agree with the WSIB s determination that the accident was one of moderate severity. (c) Conclusion [25] Pursuant to OPM Document No a moderate pre-existing condition and a moderate accident entitlement an employer to 50% SIEF cost relief.

5 Page: 4 Decision No. 793/15 DISPOSITION [26] The employer s appeal is allowed. [27] The employer is entitled to 50% SIEF relief. DATED: July 7, 2015 SIGNED: G. Dee