SUMMARY. Decision No. 1961/01 20-Aug-2001 J. Josefo - B. Wheeler - A. Grande

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1 SUMMARY Decision No. 1961/01 20-Aug-2001 J. Josefo - B. Wheeler - A. Grande A welder suffered a burn to his knee in June The employer appealed a decision of the Appeals Resolution Officer denying SIEF relief. The accident was a major, third degree burn. The worker continued to work for a number of days after the accident, before developing an infection, but this did not alter the major status of the accident. The worker had preexisting diabetes which prolonged or enhanced the disability and recovery from the compensable condition. The worker might have waited to obtain treatment because he did not feel the pain due to his diabetic condition, or there may not have been an infection or the infection may have been more easily controlled. The accident was of major significance and the preexisting condition was of moderate significance. The employer was entitled to 25% SIEF relief. The appeal was allowed in part. 8 Page(s) Keywords Preexisting condition (diabetes) Second Injury and Enhancement Fund {SIEF} (prolonged disability) Second Injury and Enhancement Fund {SIEF} (severity of accident) Second Injury and Enhancement Fund {SIEF} (severity of preexisting condition) References: Act Citation WSIA Other Case Reference [w4001s] Style of Cause: Neutral Citation: 2001 ONWSIAT 2426

2 2001 ONWSIAT 2426 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1961/01 [1] This appeal was heard in Toronto on July 25, 2001 by a Tribunal Panel consisting of : J. Josefo: Vice-Chair, B. Wheeler: Member representative of employers, A. Grande: Member representative of workers. THE APPEAL PROCEEDINGS [2] The employer appeals the decision of Corrado Cirina, Appeals Resolution Officer, dated May 10, That decision concluded that the employer had no entitlement for SIEF relief. [3] The employer appeared and was represented by Mr. Richard Fink, Barrister and Solicitor. Mr. I.B., of the accident employer, attended both to instruct Mr. Fink as well as to testify. The worker did not participate in this appeal. THE RECORD [4] The following exhibits were marked: Exhibit #1: the Case Record, Exhibit #2: Correspondence to Mr. Fink dated February 26, 2001 from the Tribunal. [5] In addition, at the hearing Mr. Fink sought leave to tender additional medical and other related evidence. Specifically, he wished to tender his letter dated April 25, 2001 soliciting a medical opinion from Dr. Howard Minuk, an excerpt from the Merck Manual as well as from the handbook of Emergency Medicine, a July and August 1999 Calendar, as well as Dr. Minuk s July 17, 2001 report. [6] Mr. Fink apologized for the late tendering of the documents. He explained that he sought the medical opinion from Dr. Minuk in April, and expected to have the report in good time for this hearing. Given that the medical report is relevant, and that there is no prejudice to have same admitted, the Panel agreed to admit all the items listed above. They were collectively entered as Exhibit #3. [7] It must be observed, however, that this is hardly the first time that a physician has been allegedly tardy in submitting a report. Given that this is so common, counsel should request these reports earlier, in order to deliver them in a timely fashion. [8] The Panel heard testimony from Mr. I.B. Submissions on behalf of the employer were made by Mr. Fink.

3 Page: 2 Decision No. 1961/01 THE ISSUES AND BACKGROUND OF THE APPEAL [9] The sole issue was whether the employer was entitled to SIEF relief. Mr. Fink submitted that the relief should be at 100%. [10] The background of this appeal was described as follows by the Appeals Resolution Officer in her decision: The worker was employed as a welder with [the accident employer]. On June 30, 1999, while welding, he knelt down on a piece of hot weld injuring his left knee. He delayed reporting the incident and initially did not seek any medical attention, as he did not believe the injury to be serious. Finally, on Monday, July 5, 1999, he sought medical attention in Brantford General Hospital. He was diagnosed as having a three by four centimetre wide, third degree burn on the knee, which had become infected and was therefore admitted to hospital. He was discharged on July 10, with homecare to assist with dressing changes twice daily. The injury gradually resolved without any apparent complication and the worker was able to return to his pre-injury job on August 25, In a letter dated July 8, 1999, the employer requested 100% SIEF cost relief, indicating the worker s injury was complicated and recovery prolonged by the fact that the worker is a diabetic. After reviewing the medical information the Adjudicator concluded there was no basis to grant SIEF, as there is no evidence of the claim being prolonged due to the worker s diabetic condition. [11] After considering the matter and without an oral hearing, the Appeals Resolution Officer concluded as follows: The worker suffered a third degree [most serious] burn to his knee on June 30, He initially did not think it was serious and did not seek any medical attention. By the time he did seek medical attention after five days, the burn had become infected. The burn was described as a fairly deep injury, with some ligamentous tissue being visible. There is no dispute about the fact that the worker is a diabetic, who is insulin dependent to control his condition. However, the recovery from this fairly serious burn injury was not excessively long (approximately seven weeks). There is no evidence of a slow or unreasonably long recovery, and there is no evidence to suggest that the diabetes was in any way responsible for the onset of the infection, or that it delayed the recovery time in any way. This is supported by the treating specialist in her report dated August 12, 1999, which states, he is a diabetic but I haven t detected any suggestion of ischemia at this time. [12] Consequently, the employer s appeal was denied. The employer appeals further to the Tribunal. THE REASONS (i) Background [13] Mr. I.B. described the accident employer s Safety Policies as well as their first aid facilities. Mr. I.B., an Engineer and the Director of Human Resources Development for the employer, is responsible for developing safety policies, the first aid facilities of the employer as well as investigating work accidents.

4 Page: 3 Decision No. 1961/01 [14] The first that Mr. I.B. learned of the accident involving this worker was when the worker entered hospital. Mr. I.B. spoke to the worker s supervisor, who also had no knowledge of the situation. Mr. I.B. then spoke to the worker who described the welding accident. [15] The worker apparently told Mr. I.B. that, when he knelt down on an old weld, it burned through the fire and flame retardant coverall that the worker, and indeed all workers of the employer, must wear. It was Mr. I.B. s view that this was a minor burn. He suggested that, because of the two first aid facilities that the worker knew were available to him, if the worker had believed the matter was serious, he would have sought medical attention at the first aid station or the clinic. It was also noted, in reference to the 1999 calendar, that the worker continued to work for next two days despite this injury. [16] Mr. I.B. further opined that it was at least in part the worker s onus, knowing that he had a diabetic condition, to be vigilant in seeking prompt medical attention when such would be required. Mr. I.B. did not, however, dispute in any way the fact that the accident occurred as the worker described or that the worker was injured as the medical evidence confirmed. (ii) Submissions for the employer [17] Mr. Fink reviewed the medical evidence on file as well as the new medical report in Exhibit #3 in some detail. It was submitted that the destruction of the tissue was due to the worker s neglect of taking care of the burn, which neglect resulted in the subsequent infection and damage. It was further submitted that the worker did not willfully neglect his injury, but because of his underlying and severe diabetic condition, did not appreciate the nature of the injury and the need for prompt treatment. [18] Mr. Fink thus submitted that it was not the burn itself, but the subsequent infection that caused the worker to lose eight weeks from work. It was submitted that the worker had in fact worked for several days following the accident without any difficulty. Difficulties only arose when the wound became infected, which caused the worker to have to lay off. [19] It was further submitted that the burn started off as a blister burn but because of the lack of treatment, subsequently was diagnosed as a third degree burn. [20] Mr. Fink referred to Dr. Howard Minuk s July 17, 2001 report. Mr. Fink noted that it was this medical specialist s opinion that, as Mr. Fink submitted, without the worker having diabetes he would have been more aware of the pain from the burn, and would have more promptly have sought medical attention. [21] Referring to document No in the Operational Policy Manual, it was submitted that the worker had a major pre-existing condition and only an accident of minor severity. On that basis, it was argued that the employer was entitled to % cost relief. Mr. Fink submitted that the cost relief in this case should be at the 100% level.

5 Page: 4 Decision No. 1961/01 (iii) Discussion and conclusions [22] The Panel well understands the employer s frustration, as expressed by Mr. I.B. with its concern that the costs of this matter have been visited upon it. Mr. I.B. described in detail the employer s commitment to proactively operate in a safe fashion; and the Panel can find absolutely no fault in anything that the employer is doing, as was described to us. [23] Essentially, Mr. I.B. expressed his view that it appeared unfair that the employer, notwithstanding all its proactivity and efforts made to operate in a safe fashion, still was visited with all the cost associated with this claim. As Mr. I.B. further noted, these costs are not insignificant. [24] While the Panel can, well understand the employer s concern in this regard, this is a no fault system. The worker is still entitled to receive benefits so long as he meets the criteria for entitlement in the Act. That he did not was, quite properly, not even raised as a possibility in this matter before. [25] From the outset of this matter, Mr. I.B. corresponded to the Board on the basis that, because the worker believed the burn to be minor, there should be cost relief. We refer specifically to his August 10, 1999 letter which stated in part as follows: On June 30, 1999 [the worker] received a minor burn to his left knee when he knelt down on some hot welding slag (metal). The worker considered this burn to be so minor that he did not report it for six days. The worker was hospitalized as a result of blood poisoning or infection of the knee as a result of him being a diabetic. Clearly this is not the fault of the employer as noted in several WSIAT decisions on record. Please provide the reasons for the allowance and apply SIEF. [26] Similarly, in his October 5, 1999 letter, Mr. I.B. again asserted that the condition was a minor burn. In his October 6, 1999 letter to the Claims Adjudicator, Mr. I.B. again reiterated that it was the worker who believed that it was a minor burn. He also refers to some Tribunal decisions that address the consequences of a severe infection when trauma is minor or unnoticed. At the hearing, it was also reiterated that, because the worker did not seek attention, he initially must have thought that the problem was a minor one. [27] Yet, that is not the test. It matters very little whether the worker subjectively believes his problem to be minor, or major, for that matter. What is of more compelling importance than a subjective view is it the actual medical evidence that determines the nature and severity of a condition. [28] The medical evidence in this matter from the outset noted that the worker had suffered a deep burn. This is indeed as stated in the health professional s report dated July 5, The report of Dr. D. Hendrie, dated July 6, 1999, states in part as follows: Clinical history is third degree burns to left knee [29] Mr. Fink submitted that there were some errors in the clinical history taken in the original Emergency Room Consultation Report. Yet, the report of July 8, 1999, and the subsequent Discharge Summary dated August 19, 1999 clearly note that the worker had suffered a burn on his left leg at work. The July 8, 1999 report states in part as follows:

6 Page: 5 Decision No. 1961/01 he apparently burned his left leg at work on the Wednesday prior to assessments. He is a welder and he apparently kneeled on a spot which he had been welding and burned his left lower leg. Initially the area blistered and apparently the blister opened later on that evening at home Dr. G.D. Maddison was consulted given the apparent depth of the wounds and whether or not this was in fact a third degree burn which has become infected. Dr. G.D. Maddison assessed the patient and debrided the area and has elected to admit him for IV antibiotics. [30] In his August 12, 1999 report Dr. Maddison observed that the worker was a diabetic but noted: but I haven t detected any suggestion of leg ischemia at this time. [31] In his September 2, 1999 report Dr. Maddison noted that it was a burn like injury and that it was a deep injury. In his September 14, 1999 report Dr. Maddison noted as follows: At the present time (September 16, 1999) the left lateral knee region is virtually healed from the deep wound that it had. He now is able to return to work and he is doing other regular activities. Substantial knee swelling has subsided and he has good range of motion of his left knee [32] Based on all the medical evidence, the Panel accordingly concluded that the treating physicians did have an understanding of the underlying causes to the worker s condition including the nature of the accident. We further conclude that this was not a minor burn or superficial wound. Quite clearly, this was a major, third degree burn, which blistered immediately and which was visual to the worker. [33] That the worker did not seek immediate treatment may be due to a whole range of reasons, including that it was the Canada Day weekend and he did not want to upset his family, or even possibly due to some machismo. While the employer s frustration is understood, the fact that the worker delayed treatment for whatever reason, including possibly hoping that the matter was not nearly as serious as it obviously would have appeared, does not mean that the employer is entitled to cost relief. [34] We specifically disagree that the accident was a minor one, as the burn was obviously quite serious and the wound was quite deep from the outset. There is no medical evidence that suggests that the actual burn wound was minor and the burn only became more serious over the five or six days. [35] That does not, however, end the inquiry. We also agree that the worker was able to work the next two days after the accident, despite what was obviously a pretty severe burn. What caused the worker to be unable to work? The infection that resulted from the burn and that required the hospitalization and intravenous antibiotics to clear it was what prevented the worker from working. [36] Dr. Minuk s July 17, 2001 report states in part as follows: The issue on which I was asked to comment is whether this gentleman s Type 1 (insulin dependent) diabetes was a major, minor or moderate contributor to the length of the disability, which was seven weeks. [The worker s] insulin dependent diabetes was definitely a major contributor to the length of the disability Small and large vessel arterial disease is noted in diabetics, compromising blood flow to the injured extremity.

7 Page: 6 Decision No. 1961/01 This is known to be an important factor both in delaying recovery and increasing the likelihood of a secondary infection. For similar types of traumatic injuries as non diabetics, one can anticipate a greater period of convalescence in the diabetics Impaired arterial circulation, a recognized diabetic complication, results in further ischemic damage to the extremity and such ischemic injury (lack of oxygen) may contribute to perhaps 30-40% of foot ulcers Type 1 diabetes is a very serious disease and is associated with both neuropathy and small vessels disease. The diabetic with his neuropathy, is much less able to perceive pain as compared to the non-diabetic Without his Type 1 diabetes, it is my believe that [the worker] would have had better perception of the pain associated with this injury and sought medical attention at an earlier time. Which such prompt medical attention, he would have been much less likely to have sustained a secondary infection. Moreover, were he non-diabetic, healing from such a secondary infection would have been much more rapid since the supply of wound healing biologic mediators would not have been compromised by diabetic small vessel disease. [37] While Dr. Minuk has not had the opportunity, obviously, to examine the worker, his medical report still is of value. Essentially, it is submitted that, but for the diabetic condition, the worker would himself have realised that his condition was much more serious than he initially supposed or hoped. It is further argued that, given that realization, the worker would have sought treatment earlier and likely avoided a serious infection. Even if the worker still had an infection, it would have been treated earlier, and healed faster, and the worker would have been able to return to work much earlier. [38] Having weighed all the medical evidence, including Dr. Minuk s persuasive report, the Panel believes there is merit in the argument that, but for the diabetes, this major accident would have received earlier treatment as well as a likely earlier resolution. If the worker had not waited six days for treatment, because perhaps due to the diabetic condition he did not feel the pain or realise that the condition was so severe, there might have been no infection at all or a much more easily controlled one. The lack of infection or a less severe one likely would not have required hospitalization and time off work. [39] Thus, it can fairly be concluded that the worker s underlying medical condition of diabetes did prolong or enhance the disability and the recovery from the compensable condition. The employer is thus entitled to a degree of cost relief. [40] By stating that the worker did not seek earlier treatment, it should in no way be considered that we are faulting the worker for this. As Dr. Minuk makes clear, the worker probably did not realise, because of his underlying diabetic condition, just how severe the original accident was. Reasonably, given his condition, the worker thought that this problem would clear up on its own and he also likely did not want to worry his family during the long holiday weekend. The worker acted not in an unreasonable fashion and is thus in no way to blame for not having acted more promptly. No doubt, the worker now understands that, due to his underlying condition, he needs to attend promptly to what would for a non-diabetic be likely a much more minor event. [41] The degree of cost relief that the employer is entitled is based on our finding that the accident was a major one. Given that the worker s diabetes was under control, though still serious, we determined it to be a condition of moderate significance. On that basis the employer has entitlement to 25% cost relief to the Second Injury and Enhancement Fund.

8 Page: 7 Decision No. 1961/01 THE DECISION [42] The appeal is allowed in part. The employer has entitlement to 25% cost relief. DATED: August 20, 2001 SIGNED: J. Josefo, B. Wheeler, A. Grande