WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1800/08

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1800/08 BEFORE: A. G. Baker : Vice-Chair J. J. Donaldson : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: August 26, 2008 and May 6, 2009, at Hamilton Oral DATE OF DECISION: July 29, 2010 NEUTRAL CITATION: 2010 ONWSIAT 1773 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decisions dated August 15, 2006 and February 4, 2008 APPEARANCES: For the worker: For the employer: Interpreter: D. Bradish, Paralegal A. Southworth, Paralegal 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. 1800/08 REASONS (i) Introduction [1] The employer appeals the decision of Appeals Resolution Officer (ARO) D. M. Shepherd dated August 15, In that decision, the ARO denied the employer s objection to the granting of entitlement to benefits for the worker s infection secondary to a left thumb laceration in the workplace. The employer s objection was also denied in regard to Secondary Injury and Enhancement Fund (SIEF) relief for the secondary injury. [2] The employer also appeals the decision of ARO S. Marangoni dated February 4, In that decision, the ARO concluded that the employer was entitled to 50% SIEF relief in regard to the worker s left knee injury. [3] The employer appeals initial entitlement to the secondary infection. If granted, the employer seeks 100% SIEF cost relief. The employer also seeks 90% cost relief in relation to the worker s left knee injury. (ii) Issues [4] Is the worker entitled to benefits for an infection secondary to the left thumb laceration suffered on August 15, 2005? [5] If granted, to what extent is the employer entitled to SIEF relief in regard to the secondary infection? [6] To what extent is the employer entitled to SIEF relief in regard to the worker s left knee injury as of May 23, 2006? (iii) Background [7] There were two ARO decisions under appeal, and which noted the background in this matter. On August 15, 2005, the worker suffered a laceration to the left thumb while performing electrical duties. He awoke the next morning with a fever and developed severe flu like symptoms over several days. He attended the emergency room on August 18, [8] The medical information on file indicated that the worker had bacterial endocarditis for which he underwent aortic valve replacement in He contracted hepatitis C in post-surgical blood transfusion. After being admitted on August 18, 2005, the worker had normal testing, including blood cultures and echocardiogram. The most likely diagnosis for the worker s condition was determined to be transient bacteremia as a result of the thumb laceration. He was treated aggressively with intravenous antibiotics. He improved and was discharged on August 28, The ARO noted that the worker s cardiologist agreed with the diagnosis in September 2005 and extended the antibiotic treatment. The worker returned to work on October 3, [9] The worker was granted initial entitlement for the infection secondary to the thumb laceration, and the employer was denied SIEF cost relief.

3 Page: 2 Decision No. 1800/08 [10] In regard to the left knee injury, the worker was lifting an 80 pound cable on May 23, 2006, when he felt a pop in the left knee. He was diagnosed with a medial meniscal tear and a complete ACL tear, and he had surgery on July 5, The worker was granted benefits for the injury, as well as a Non-economic Loss (NEL) award of 8% for permanent impairment of the left knee as a result of the accident. [11] The employer was initially denied SIEF cost relief. The ARO ruled that the worker had a minor pre-existing condition prolonging and enhancing recovery. The accident was also viewed as minor and 50% cost relief was granted by the ARO for the knee condition. (iv) Testimony [12] The worker testified that it was possible he had other cuts from saws prior to his work accident. He said that he worked with hacksaws on the job. He also denied any cuts at home. He stated he had a dog and two cats, which were declawed. He stated that he did not have a fever before his accident at work, and developed problems about four days after the accident. He stated that he called the doctor and attended the hospital. [13] The worker stated he had hepatitis C for some six to seven years and had heart surgery in He noted further surgery and taking a blood thinner since He stated that he had not been attending the doctor for his hepatitis C just prior to his injury. [14] The worker stated he had been working as an electrician removing a panel cover when it slid down and scraped his thumb. He stated he did not have gloves on, but there was not a lot of blood. He stated that he told a co-worker about the scrape, washed it, and returned to work. He did not use a bandage or other treatment. He did not feel there was any emergency. He stated it barely bled with no stitches and he did not think it needed anything further. He had no difficulty that day and nothing unusual had occurred. [15] The worker stated that on August 16, he called in sick. He had awoken sweating and had a fever, his bed was soaked. He stated that he had never felt like that before. He stated he showered and felt better. He could not recall if he mentioned the scrape when he called. He stated he was off work on the 16 th and 17 th with a fever. He stated he may have taken Tylenol. [16] The worker worked part of the 18 th as he felt better, as though the fever broke. He stated that he was feeling weak and uncomfortable up ladders and contacted his doctor. He was told to go to the emergency given the history of heart problems. He stated he again felt he had a fever, dizziness and felt weak. He stated he drove to work, but took a taxi to the hospital. [17] The worker stated that he told the doctor about his scrape and subsequent fever, heart problems and hepatitis. The doctor washed his thumb and treated the wound. The worker stated that the fever was more of a concern. He was admitted with chills, a blanket, and sweating. He stated he may have had other scratches on his hands from work, and may have had more severe cuts previously without such an infection or stitches, and without the need for antibiotics. He also described the electrical panel as old, large, and having not been removed for some time. [18] In regard to the 2006 knee claim, the worker stated that he attended a Regional Evaluation Centre in He also recalled a previous right knee scrape when he was about 21

4 Page: 3 Decision No. 1800/08 years old. He stated he had no problem with that knee for several years from about 1980 to1987. He noted some crepitus in or about He stated he had a history of right and left knee problems and noted that he had no prior right knee surgery and no brace before He also noted using ice and anti-inflammatories in the past. He stated that he scraped his left knee and there was no right knee pain or problems when he injured his left knee. The worker also noted being on a blood thinner with side effects, such as bruising easily and hair loss. [19] The worker noted being cleared for return to work in October He noted signing up for work through the union hall. He stated he has returned to work with some left knee problems. He stated both knees were pretty sore. When questioned by the worker s representative he stated that the right knee had never stopped the worker from working. He stated he did not see a specialist for the right knee before He stated he wears a brace for his left knee at work. He also stated he was not hospitalized for scratches and had no diagnosis of a pre-existing degenerative problem. He stated he had no left knee injuries before the accident and no ongoing medication for the knees. [20] The worker also stated he has had health and safety training in the past and understood his obligation to report injuries. He stated again it was a small scrape and he did not see it as worth reporting. He also stated he was in the hospital after the infection, and waited several days to file his forms. (v) Law and policy [21] In this case, since the accidents were in 2005 and 2006, the Workplace Safety and Insurance Act (WSIA) applies. We also noted that the employer in this case did not dispute that the thumb laceration was a work-related injury. The issue remained whether the infection was a secondary injury that arose as a result of the thumb injury. [22] Under Board Operational Policy Manual (OPM) Document # , entitlement may also be granted to benefits for a condition secondary to the work-related injury. Entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work-related injury. The development of a left knee disability/impairment due to an increased dependency following a work-related injury to the right knee is an example provided in the policy. [23] In order to determine whether there is a causal link between the initial work-related injury and the claimed secondary injury, this Tribunal applies the significant contribution test. Under this well-established test, it is not required that the workplace accident and injury be the sole causes of the worker s secondary condition. As long as the workplace injury or activity is a significant contributing factor, then entitlement to benefits is established. In Decision No. 280 (1987), W.C.A.T.R. 27, the Tribunal defined significant contributing factor as follows: A significant contributing factor is a factor of considerable effect or importance or one which added to the worker s pre-existing condition in a material way to establish a causal connection. [24] The Panel further noted the employer s appeal for cost relief and the quantum of this relief for the worker s injuries. Under Board OPM Document # entitled Second Injury and Enhancement Fund, the following is provided:

5 Page: 4 Decision No. 1800/08 Policy 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. Guidelines ( ) The objectives of this policy are to provide employers with financial relief when a preexisting condition enhances or prolongs a work-related disability. It thereby encourages employers to hire workers with disabilities. Definitions Pre-accident disability is defined as a condition which has produced periods of disability in the past requiring treatment and disrupting employment. Pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest postaccident. Adjudication In no lost time, lost time, permanent impairment and fatal claims, the decision to extend relief from the SIEF is usually made at the time of entitlement adjudication, or as soon as it is recognized that aggravation of a pre-existing condition is contributing to the cost of the claim. When reviewing medical and other information present in the claim file, the decisionmaker considers whether the information suggests that a pre-existing condition is present and whether it contributed to the work-related accident, or prolonged or enhanced the work-related disability [25] Under the policy, and in determining the amount of financial relief given to the employer, consideration is given to the medical significance of the pre-existing condition and the severity of the accident. For example, and as per the chart in the policy, a minor pre-existing condition and a major accident would not provide any cost relief, whereas a major pre-existing condition and a minor accident provides cost relief in the 90%-100% range. (vi) Decision Entitlement and SIEF for secondary infection [26] In regard to entitlement to benefits for the secondary infection, we have decided to deny the employer s appeal. In that regard, we were satisfied the initial thumb laceration was a significant contributing factor to the secondary infection. In coming to that finding, we noted the following information. [27] First, we again noted that there was no dispute that the worker injured his thumb and that the laceration did occur at work, during work hours, and in the course of the worker s duties. It was also evident that the worker did not bandage the wound and continued his duties.

6 Page: 5 Decision No. 1800/08 [28] After reviewing the file information and testimony, the Panel noted the worker developed symptoms that he initially viewed as a virus, but attended the hospital after his condition worsened. The thumb laceration was clearly reported on file when the worker attended the hospital. It was noted there were no other recent wounds documented despite reporting from the employer that other wounds were evident. [29] In this case, it was reported that the worker had both the injury from work, as well as a medical history that required taking particular actions once he attended at hospital. In that regard, we noted the worker was initially reported in medical documentation to have presented with a one-week history of fever. However, the worker explained to our satisfaction that this estimate was incorrect and that the symptoms arose subsequent to the laceration. We were persuaded that the estimate of a week was incorrect, as there was a lack of other evidence that the worker was suffering symptoms prior to the accident. It was also notable that the worker was at work before the injury and had not previously reported symptoms before his accident. We note again that the worker explained credibly in his testimony that the symptoms arose the day after the scrape. In that regard, the Panel was persuaded that there was a contemporaneous onset of symptoms with the thumb laceration. [30] It was further noted that the worker underwent extensive investigation when he attended the hospital. That included normal findings on blood analysis and echocardiogram. The Panel also reviewed the report of Dr. Karpilow, family and occupational medicine, dated May 21, The doctor reviewed the worker s history in relation to the thumb laceration and subsequent infection. The doctor questioned the emergency room record and found it was unlikely that the scratch received at work caused the infection. The doctor noted the worker s history of hepatitis C, drug use, alcoholism, and that he is a smoker. The doctor also noted the past episodes of endocarditis and heart valve replacement. Transient ischemic attacks were also noted from 1994, but with complete recovery. In short, the doctor opined that a mild scratch on the back of the hand would not have caused a major infection if the worker had a healthy immune system. [31] Dr. Karpilow further opined that it was common for people with the heart difficulties as in the worker s case to be covered with antibiotics to prevent further damage to the cardiac muscle. This was stated to have been a preventative measure because of the worker s heart valve replacement. The doctor also stated that the worker could be classified as having a major set of pre-existing conditions, with documented decreased immune competence due to his existing disease state and previous medical history. The doctor concluded it was extremely unlikely that the illness that the worker presented with was caused by a minor scratch on the back of his hand that was not even deemed sufficient to have First Aid applied when he was in the emergency room. [32] While the Panel agrees that the worker had pre-existing difficulties, we also noted that Dr. Karpilow was not the worker s treating physician. Further, that the majority of the medical reports, including those from the hospital medical team and worker s specialist, found that the most likely explanation for the worker s symptoms were infection secondary to the thumb injury. [33] It was noted in the hospital discharge summary in August 2005, that the worker had a history of recent hand trauma and that he had most likely developed transient bacteremia. It was

7 Page: 6 Decision No. 1800/08 also evident that the absence of test findings and a rapid response to antibiotics were consistent with the diagnosis of transient bacteremia. [34] Dr. Finkelstein, the worker s cardiologist, also provided a report dated September 14, The doctor opined that, while the worker...did have fever following trauma to his left hand, it was felt this probably was a transient bacteremia... The doctor supported continuing the treatment that had begun in hospital. Given the hospital reports and the report from the worker s cardiologist, the Panel was persuaded that the thumb laceration was a significant contributing factor to the worker s infection, and he was entitled to benefits. The employer s appeal is therefore denied in that regard. [35] With respect to the issue of SIEF for the thumb condition, we also note the worker had a pre-existing heart condition and prior procedures. As noted in September 2006 by Dr. Balinson, a Board Medical Consultant, the worker had a history of cardiac conditions. While they were not viewed as contributing to the injury or prolonging recovery, the doctor left open the possibility that further medical evidence may become available. [36] However, the worker had also been prescribed aggressive antibiotic treatment as noted in the hospital consultation report from August 24, In that report, the worker s previous cardiac conditions were noted and the possible diagnosis of endocarditis based on his previous history. Again, as noted in the hospital discharge report, the worker had a cardiac history that impacted on the nature of the worker s treatment. In particular, the worker s aggressive treatment with antibiotics spanned his hospital stay and continued after he left the hospital. [37] The Panel therefore concluded that the worker s treatment and recovery from the infection was prolonged and enhanced due to his pre-existing cardiac conditions. As noted by Dr. Karpilow, people with heart difficulties as in the worker s case, are treated in a preventative manner with antibiotics to prevent further damage to the cardiac muscle. [38] It was evident in this case that the worker was treated to an extent with somewhat more caution given his pre-existing heart problems. That included admission to the hospital, testing, and an aggressive course of antibiotics, which was confirmed by the worker s cardiologist. As such, while the worker s infection was not caused by the pre-existing cardiac problems, we did view those difficulties as prolonging and enhancing the worker s treatment and recovery. [39] However, we did not view the impact as serious, given the nature of the treatment and recovery. The pre-existing condition was evidently under control prior to the laceration and gave rise to precautionary medical measures which were the basis for the enhancement of the worker s treatment. Those measures did not appear to lead to more serious cardiac problems, only an extension of treatment for the laceration. It was also evident that the nature of the worker s laceration was at most, minor. Given a minor pre-existing condition and minor accident, we find the employer is entitled to 50% SIEF cost relief. [40] We further noted the employer has diligently pursued SIEF cost relief from a short time after the accident/injury and that the time passed has, in a large part, been due to the appeals process. We also noted that there is a possibility the window for providing such relief may have closed in regard to the employer s experience rating. In our view, there are exceptional

8 Page: 7 Decision No. 1800/08 circumstances in this case given those findings. As such, the Panel was of the view that the employer would be entitled to a manual adjustment to its experience account if necessary. SIEF Quantum for the left knee [41] In regard to the left knee injury in 2006, we note the worker s previous right knee problems that pre-dated the left knee surgery. We also note the reporting on file from Dr. De Beer, an orthopaedic surgeon, who recognized the worker had bilateral knee problems, including ACL laxity. We also note the REC report from May 2007, which noted the worker s ongoing left knee ACL deficiency, and probable ongoing problems with both knees. [42] The worker was also diagnosed with osteogenesis imperfecta. It was reviewed by Dr. Balinson, Board Medical Consultant, who noted the condition was an inherited disorder, and that the worker had the trait for the disorder. It was also stated that that did not mean the worker was affected by it, but had the potential to pass the trait on to his children. The doctor indicated that medical evidence did not support that the pre-existing condition served to prolong or enhance the worker s recovery. A similar finding was made by Dr. Steinnagel, a Board Medical Consultant in July 2007, with the recommendation of a further review. [43] However, despite those findings, we agree with the ARO decision that SIEF relief was in order and that 50% is appropriate. This was based in part on a further report from Dr. Karpilow in May The doctor summarized that osteogenesis imperfecta was evident since the worker s youth. Further, that it has led to multiple fractures and various orthopaedic knee injuries, including the May 2006 left knee injury. That was based on a review of a number of reports from the worker s treating physicians. The doctor opined that the worker s ACL laxity was long-standing as a result of his condition. The Panel found that finding as supporting SIEF, as the doctor indicated in the body of the report that the worker would have been predisposed to injury of a joint, and a knee in particular. [44] However, it was not evident that the worker had a severe form of the condition. Rather, while he may have been predisposed, it was not evident there had been a serious or debilitating condition in the knee prior to the worker s accident. As such, we found the pre-existing condition to have been at most, mild. Further, it was our view that the accident in this case was minor. In that regard, the worker suffered a minor twist to the knee that was not life threatening and would not have been expected to cause a disabling injury. As such, we confirm that 50% SIEF relief is appropriate. Therefore, the employer s appeal is denied in that regard.

9 Page: 8 Decision No. 1800/08 DISPOSITION [45] The appeal is allowed in part. The worker is entitled to benefits for the infection secondary to his left thumb laceration. The employer s appeal is denied in that regard. [46] With respect to the left thumb claim, the employer is entitled to 50% SIEF cost relief in regard to the secondary infection, with a manual adjustment to its experience account if necessary. [47] The employer s appeal is denied in regard to further SIEF cost relief for the left knee claim. DATED: July 29, 2010 SIGNED: A. G. Baker, J. J. Donaldson, M. Ferrari