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

Transcription

1 SUMMARY DECISION NO. 1423/97 Second Injury and Enhancement Fund [SIEF] (preexisting condition). The worker suffered a knee injury in March A torn meniscus was diagnosed and the worker underwent arthroscopic surgery in October During the surgery to repair the torn meniscus, chondromalacia was noted and a debridement was performed during the surgery. The employer applied for SIEF relief. The Dispute Resolution Officer found that the chondromalacia was a major underlying preexisting condition. The Dispute Resolution Officer did not grant SIEF relief at the time but stated that, if a permanent impairment develops, the employer will be entitled to 90% SIEF relief. The employer appealed denial of SIEF relief. The pre-operative diagnosis was meniscal tear. The post-operative diagnosis included chondromalacia. The reason for the surgery was the compensable torn meniscus. When the chondromalacia was noted, debridement was performed but the purpose of the surgery was to repair the torn mensicus. The healing time from the surgery was normal. Had the pre-operative diagnosis included the non-compensable preexisting chondromalacia, the employer would have been entitled to some SIEF relief for the lost time due to the surgery. However, in the circumstances, the employer was not entitled to SIEF relief at this time. The appeal was dismissed. [5 pages] DECIDED BY: McGrath; Thompson; Apsey DATE: 30/01/98 ACT: WCA

2 WORKERS COMPENSATION APPEALS TRIBUNAL DECISION NO. 1423/97 [1] This appeal was considered on November 26, 1997, by a Tribunal Panel consisting of: J. McGrath : Vice-Chair, R.H. Apsey : Member representative of employers, P.J. Thompson : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the Dispute Resolution Officer Decision of February 21, This decision denied the employer any Second Injury and Enhancement Fund (SIEF) relief on lost time from October 25, 1995, to November 27, 1995, for knee surgery related to a compensable accident on March 22, The Dispute Resolution Officer also decided that if a permanent impairment became evident, at that time 90% SIEF relief would be applied. [3] This appeal was considered on the basis of written evidence before us upon the agreement of the employer s representative, G. Nolis from L.A. Liversidge and Associates Ltd. The worker did not participate. THE EVIDENCE [4] The Panel considered the Case Record materials prepared by the Tribunal Counsel Office and the submissions of the employer with attachments. THE ISSUE [5] The worker injured his right knee on March 22, 1995, in a compensable accident which occasioned at that time no lost time. However, a right medial meniscus tear was diagnosed in August 1995 by an orthopaedic surgeon who recommended and then performed arthroscopic surgery for this condition on October 26, The worker lost time from work for this surgery from October 25, 1995, to November 27, 1995, and then returned to light work for approximately three months at which time regular work was resumed. As a result of the arthroscopic partial medial meniscectomy, a grade 3 chondromalacia patellar and a grade 3 chondromalacia lateral tibial plateau were noted and there was accordingly a debridement of these secondary areas during the surgery. [6] As a result of these considerations and bearing in mind that a major underlying pre-existing condition was discovered at the time of surgery the Dispute Resolution Officer allowed the employer s objection in part. SIEF relief was not ordered at the time of the decision for the lost time involved however SIEF relief was to be applied at 90% to all costs if a permanent impairment became evident.

3 Page: 2 [7] The Panel must decide whether the employer is entitled to SIEF relief for the time lost for surgery as a result of these underlying conditions prolonging, enhancing or indeed contributing to the medial meniscus tear and surgery. THE PANEL S REASONS (i) Factual background [8] On March 22, 1995, the worker, while lifting and then turning, felt a sudden pain in his right knee. He continued to work but was diagnosed on August 25, 1995, by the treating orthopaedic surgeon as having a medial meniscal tear. Surgery was recommended and was performed on October 26, There was time lost from work from October 25, 1995, to November 27, [9] The worker returned to light duty for a period of approximately three months and then regular duty. Throughout the three months of light work, the worker was restricted to limited kneeling, crouching and knee bending. [10] The Dispute Resolution Officer determined that the time off for the actual surgical recovery was within the normal healing time and the recognition of the worker s restrictions to March 1, 1996, was a normal expectation for an employer with respect to someone who had recently undergone such surgery. (ii) The medical evidence [11] When the worker was examined on August 25, 1995, by Dr. R.T. Deakon, orthopaedic surgeon and the eventual operating surgeon, the diagnosis was made of a medial meniscal tear and the recommendation for arthroscopy and debridement of the right knee was agreed to by the worker. As a result of this, the surgery was carried out on October 26, It is important to note that the pre-operative diagnosis only referred to the medial meniscal tear. The post-operative diagnosis, however, included the following: Complex medial meniscal tear. Grade 3 chondromalacia patellar. Grade 3 chondromalacia lateral tibial plateau [12] The operation itself involved an arthroscopic partial medial meniscectomy, an arthroscopic debridement of the patella, and an arthroscopic debridement of the lateral tibial plateau. [13] The Claims Adjudicator wrote to Dr. R.G. Redfearn, the Board s Regional Medical Adviser and asked whether the doctor felt that the recovery time of the worker was prolonged by a pre-existing condition or whether any pre-existing condition was the sole cause of this injury. In response to this request, Dr. Redfearn stated the following:

4 Page: 3 (iii) Diagnosis in this claim is compatible with the mechanism of injury. It appears to myself that this client has a major pre-existing condition noting the operative report. A major pre-existing condition would prolong the claim and enhance permanent impairment if evident. The employer s submissions [14] The employer submitted that the central question in this appeal was whether the injury and subsequent surgery and lost time would have occurred at all had it not been for the worker s pre-existing condition. The employer submitted that the worker would not have even suffered the claimed accident and thereby would not have required surgery were it not for his major pre-existing condition of grade 3 chondromalacia both at the patella and the lateral tibial plateau. [15] The employer therefore submitted that as well as considering whether the claim was prolonged as a result of a pre-existing condition one must also look at the issue of whether the injury was enhanced by a pre-existing condition. [16] The employer further submitted that Board policy requires that where there has been an aggravation of a pre-existing condition or there is evidence that the disability following the accident had been enhanced because of a pre-existing condition, 50% of the cost of the claim is charged to SIEF. Therefore, in the alternative to 90% cost relief the employer submits that, at a minimum, 50% SIEF relief should be awarded. (iv) Conclusions [17] The Panel is of the view that the Dispute Resolution Officer was correct in not awarding SIEF relief for the lost time for the surgery on the worker s right knee but in granting 90% SIEF relief in the event that a permanent impairment becomes evident. [18] We are of this view because the reason for the worker s right knee surgery as arranged by the orthopaedic surgeon was the clinical diagnosis of a medial meniscal tear. There was no pre-operative diagnosis of the two underlying conditions of chondromalacia. These secondary conditions were only found as a result of the arthroscopy and the resultant debridement in these areas took place because the knee was opened up for repair of the complex medial meniscal tear. [19] The Panel concludes from the medical reports that the conditions of grade 3 chondromalacia were asymptomatic prior to the operation because they were not clinically apparent. The worker underwent this surgery for the sole purpose of repairing a torn medial meniscus. His healing time from the surgery was normal and his three months of light work after this was considered by the Board as a normal healing time for this form of surgery. The Board had already determined that the medial meniscus tear was a compensable injury arising out of a March 22, 1995, accident. [20] For these reasons we cannot agree with the employer s submissions that the injury and subsequent surgery and lost time might not have occurred at all had it not been for the chondromalacia condition. There is simply no evidence in the file indicating that the orthopaedic surgeon was aware of this underlying condition, albeit major, from a clinical examination and a report of the worker s symptoms. Had the pre-operative diagnosis included all three conditions which were listed in the

5 Page: 4 post-operative diagnosis, our conclusions would have been different. There would have been no question of an allowance of SIEF relief in some proportion for the lost time for surgery. This however was not the case. THE DECISION [21] The appeal is denied. The Panel confirms the terms of the decision reached by the Dispute Resolution Officer in his decision of February 21, DATED: January 30, 1998 SIGNED: J. McGrath, R.H. Apsey, P.J. Thompson