Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 20-12-2023

• Judge: A.G. Baker: Vice-Chair
• Judgment Date: 20 December 2023
• Judgement Number: Released_Decisions
• Hearing Date: 18 December 2023
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

Workplace Safety and Insurance

Appeals Tribunal

DECISION NO. 1760/23

BEFORE: A.G. Baker: Vice-Chair

HEARING: December 18, 2023 at Toronto

Proposed Resolution

DATE OF DECISION: December 20, 2023

NEUTRAL CITATION: 2023 ONWSIAT 1939

DECISION UNDER APPEAL: WSIB decision dated January 20, 2023

APPEARANCES:

For the worker: Not Participating

For the employer: M. Senicar, Paralegal

Interpreter: N/A

REASONS

(i) Introduction

1. The employer appeals the Appeals Resolution Officer (ARO) dated January 20, 2023. In that decision, the ARO concluded that the employer was entitled to Second Injury and Enhancement Fund (SIEF) cost relief of 50% for the worker’s right shoulder injury.

(ii) Issue

2. Quantum of the employer’s SIEF cost relief.

(iii) Background

3. The ARO also noted the following brief background in the decision under appeal:

On August 14, 2020, this senior accounting clerk was purging files and they lifted a heavy box weighing approximately 35 pounds. They lifted the box from the ground to place contents into a bin approximately four and a half feet and felt immediate pain in their right bicep and shoulder. They heard a popping sound and could not lift their arm.

The worker reported the incident to the employer and sought medical attention on the same day. Entitlement in the claim was allowed for a right shoulder rotator cuff tear involving the supraspinatus, infraspinatus, subscapularis and a high-grade partial tear of the long head of biceps tendon as a result of the workplace injury. The worker returned to work to modified duties at no wage loss and they did not lose time form work.

The worker underwent a right shoulder ultrasound on August 25, 2020 and an MRI on September 23, 2020. They participated in physiotherapy treatment under the Program of Care (POC) and they were assessed at the WSIB Upper Extremity Specialty Program on October 26, 2020. The worker participated in the physiotherapy treatment recommended by the Specialty Program.

Following this, the worker underwent a psychological assessment through the Upper Extremity Specialty Program on October 29, 2020. They participated in the recommended psychological treatment.

It was determined the worker reached Maximum Medical Recovery (MMR) with a permanent impairment on January 25, 2021 and they received a Non-Economic Loss (NEL) benefit of seven percent. On June 9, 2022, the employer representative sent in correspondence, requesting cost relief to be considered in the claim under the SIEF.

In a letter dated August 8, 2022, the CM granted 25 percent cost relief under the SIEF. The employer's representative objected to the decision and the CM reconsidered and upheld their prior decision in correspondence dated August 31, 2022. The file was referred to the Appeals Services Division for further consideration.

4. The ARO found that the employer was entitled to 50% SIEF cost relief. In coming to that finding, it was concluded that the accident was of minor severity and the worker had a minor pre-accident disability that was found to have made the worker vulnerable to developing a disability of greater severity than the average person. The employer appealed that finding to the Tribunal.

(iv) Law and Policy

5. The employer’s entitlement to SIEF relief is governed by the Workplace Safety and Insurance Act, 1997. The Board’s policy relating to SIEF cost relief is included in Board Operational Policy Manual (OPM) Document No. 14-05-03, which states in part:

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.

Guidelines

…

The objectives of this policy are to provide employers with financial relief when a pre‑existing 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 post-accident.

…

SIEF – Application to Employer Costs

Medical Significance of Pre-existing Condition*	Severity of Accident**	Percentage of Cost Transfer***
Minor	minor moderate major	50% 25% 0%
Moderate	minor moderate major	75% 50% 25%
Major	minor moderate major	90%-100% 75% 50%

NOTES

* 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.

With psychological conditions, the possibility of prior psychic trauma resulting from life experience could be considered as evidence of vulnerability, and justify recommending relief to the employer, even in the absence of pre-existing psychological impairment.

** The severity of the accident is evaluated in terms of the accident history and approved definitions.

Accident History Components

• mechanics (lift, push, pull, fall, blow, etc.)
• position (kneeling, standing,...