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1 SUMMARY Decision No. 1965/01 24-Aug-2001 L. Henderson View Full Decision 6 Page(s) Keywords: Second Injury and Enhancement Fund {SIEF} (preexisting condition) References: Act Citation WSIA Other Case Reference [w4001] Style of Cause:

2 2001 ONWSIAT 2478 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1965/01 [1] This appeal was considered by means of written submissions on July 25, 2001, by Tribunal Vice-Chair L.J. Henderson. THE APPEAL PROCEEDINGS [2] The employer appeals the decision of an Appeals Resolution Officer, dated July 27, That decision denied entitlement for Second Injury and Enhancement Fund ( SIEF ) cost relief for a work accident on May 9, [3] The employer representative, Control-Comp Consultants Inc. provided written submissions on behalf of the employer. The worker was notified but chose not to attend. THE RECORD [4] The Panel considered the following materials marked as exhibits: Exhibit #1: the Case Record prepared by the Tribunal Counsel Office dated August 28, 2000; Exhibit #2: the Hearing Ready letter dated August 28, 2000; Exhibit #3: Submissions of the employer representative dated November 13, 2000; Exhibit #4: Acknowledgement letter dated April 6, THE ISSUES [5] The issue to be determined is whether the employer is entitled to Second Injury and Enhancement Fund ( SIEF ) cost relief for a work accident on May 9, THE REASONS (i) Background [6] The worker, who was born on August 20, 1942 was employed for 7 years with the accident employer in a craft and nursery store. On May 9, 1998, she was assisting in loading soil into customers cars. [7] The worker bent down to pick up a bag of soil and while doing this felt severe pain in her low back which radiated into her right groin and down her right leg.

3 Page: 2 Decision No. 1965/01 [8] The worker attended with her family physician, Dr. D. Marshall who diagnosed acute strain and subluxation of L5-S1 (R). He prescribed Tylenol #3 and referred the worker to a chiropractor, Dr. Buss who started treatments on May 21, 1998 consisting of ultrasound, massage, heat, exercises and adjustments. [9] The worker returned to modified work on July 6, 1998 with modified duties until August 24, 1998 when she began regular work. [10] The worker had a recurrence on October 20, 1998 and did not return to work. [11] The worker continued to be treated by Dr. Buss 2-3 times per week. On January 8, 1999, Dr. Buss provided the following comment: Patient has hyperlordosis or sway back which aggravates the problem. [12] On February 1, 1999, the worker was assessed at the Regional Evaluation Centre (REC). The REC diagnosed lumbosacral strain with functional overlay. Her medical history included an injury to her back in 1995 when she fell off a rack. The worker was off work for a month and had physiotherapy for 3 months. The worker advised that she had never fully recovered from the injury in [13] The history also revealed that the worker had injured her back in 1997 while removing shelves and suffered a twisting injury. She was off work for 2 months. [14] X-rays of her lumbar spine taken on May 22, 1998 were reviewed and it was noted that the x-rays showed: Minor spurring at the anterior superior margin of L5. There is no disc narrowing. [15] The REC assessment provided a diagnosis of lumbosacral strain. Their recommendation was for the worker to return to modified work with restrictions of avoiding heavy lifting and repetitive bending for 4 weeks. [16] On February 22, 1999, Dr. Z. Mech provided the following: I have known the worker for close to 30 years. She is a person who will push herself beyond limits and beyond pain. [17] On April 29, 1999, Dr. A. Sekyi-Otu, orthopedic specialist, wrote to the worker s new family physician, Dr. D. Munro who examined the worker and provided the following: On examination, she is overweight. She has cutaneous tenderness in the low back to light palpation. She is tender also over the posterior iliac spine. She has an antalgic gait. Motion in the lumbar spine includes limited forward flexion due to pain A CAT scan report from March of 1999 demonstrates no nerve root impingement. She has mechanical low back pain at this stage and is unlikely to have complete resolution of pain.

4 Page: 3 Decision No. 1965/01 [18] On February 4, 2000, the worker was examined by Dr. J. Corless, orthopedic surgeon, who found: Clinically she could hardly move her back at all in flexion or extension. Lateral bending and rotational movements were about half normal Straight leg raising on the left was to 80 degrees and on the right to 50 degrees with a positive bow string. [19] Dr. Corless concluded that as a result of the increase in her symptoms, it would be reasonable to repeat the CT scan. [20] On April 7, 2000, Dr. Corless reviewed the CT scan and noted: (ii) There is no focal disc herniation seen but she does have degenerative changes in the 4-5 and 5-1 facet joints. Submissions of the employer representative [21] It was the position of the employer representative that the worker had 3 prior episodes of back pain. In 1995, she fell off a rack at work and was off for a month. In 1997, she was removing shelves and suffered a twisting injury and was off work for 2 months. On May 9, 1998, she injured her back while attempting to pick up a bag of soil. She returned to work for approximately 2 months and reinjured her back on October 20, 1998 and has never returned to work. [22] It is the position of the employer representative that the CT scan did show minimal facet arthropathy present at L4-5. Arthropathy means disease, therefore she maintains there are findings of DDD. [23] Ms. Stefan points out that the REC assessment does indicate the x-rays taken on May 1998 showed minor spurring at the L5. In addition, Dr. Corless April 7, 2000 report indicates degenerative changes in the L [24] In summary, the employer representative maintains that both prior disabilities and an underlying condition meet the criteria for SIEF and should be applied. (iii) The law and policy [25] Since the accident in this appeal occurred on May 9, 1998, the Workplace Safety and Insurance Act (the WSIA) applies. In addition, the Board has provided the Tribunal with the following policies pursuant to section 126 of the WSIA: Policy Package #30 Policy Package #107 Benefit of Doubt Aggravation Basis or SIEF

5 Page: 4 Decision No. 1965/01 (iv) The Vice-Chair s conclusions [26] In establishing entitlement to cost relief from the Second Injury and Enhancement Fund ( SIEF ), Board policy considers whether 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. These requirements are met in this case for the following reasons. [27] I note the history given by the worker in the REC assessment indicates that after her back injury in 1995, she believed that she never made a full recovery. [28] The work accident of January 3, 1997 resulted in pain to the low back, right groin and pain in the right leg with a diagnosis of sciatica. [29] The injury of May 9, 1998 had symptoms of acute low back pain R lumbar (L5, R S1) paraesthesia and pain into right groin and pain down right leg. [30] The recurrence of October 20, 1998 produced pain in the low back and right leg. [31] The employer s Continuity Report of November 25, 1998 states: She hurt her back on May 9, 1998 She was off work until July 6 when she began a modified duty return to work plan. It was completed by August 27, 1998, but she still had good/bad days with her back. [32] I note that Dr. Buss, the chiropractor who treated the worker for several weeks, commented: Patient has hyperlordosis or sway back which aggravates the problem. [33] I note the x-ray of May 22, 1998 shows: Minor spurring at the anterior superior margin of L5. There is no disc narrowing. [34] The CT scan of March 24, 1999 shows minimal facet arthropathy present at L4-5. Arthropathy means disease, therefore she maintains there are findings of DDD. [35] Dr. A. Sekyi-Otu, orthopedic specialist, notes: She has an antalgic gait As well, his history from the patient confirms that her initial accident while at work in 1995 was in the same area back, leg and groin (R). [36] Dr. Corless, orthopedic surgeon repeated a CT scan and reported: degenerative changes in the 4-5 and 5-1 facet joints. [37] I am satisfied that the worker had a minor pre-existing condition which is supported by the medical evidence and this pre-existing condition prolonged the period of treatment and recuperation of the May 9, 1998 accident and recurrence.

6 Page: 5 Decision No. 1965/01 [38] The employer is entitled to 50% cost relief. THE DECISION [39] The employer s appeal is allowed. DATED: August 24, 2001 SIGNED: L.J. Henderson