Highlights of Noteworthy Decisions

Decision 1012 20
02/10/2020
R. Salisbury
  • Medical report (adjudicative opinion)
  • Second Injury and Enhancement Fund {SIEF} (severity of accident)

The worker suffered a knee injury in December 2017, when he slipped and fell on ice as he was exiting the employer's premises. The Board granted the employer 75% SIEF relief based on an accident of moderate severity and a pre-existing condition of major medical significance. The employer appealed, claiming that the accident was of minor severity and that, accordingly, it should be entitled to 90% SIEF relief.

When there is an element in a slip and fall accident indicating that the slip and fall was something more than "simple," such as a fall on ice, the accident could be considered to be more than "minor." However, the employer submitted that, in this case, the worker was on ice and slipped to the ground, so that the fall has no more abnormal mechanics than falling on a regular surface.
The documentary evidence provided no information of substance about the nature and extent of the icy conditions, gradient, footwear, underlying surface and extent of snow removal if any, the worker's momentum or his actual movements prior to slipping and falling. The Vice-Chair could not conclude that this was a "simple" slip and fall of a "minor" nature as if there was no involvement of unrecognized icy conditions.
The employer obtained an opinion from an orthopaedic surgeon. The employer asked whether the accident was minor or moderate considering whether a significant disability was likely or unlikely, and whether time loss from work was expected. The doctor responded that the mechanism is a minor mechanism in the vast majority of adult males who slip and fall on the ice and that the mechanism typically does not result in any significant injuries resulting in lost time or, at the very most, minor soft tissue injuries that would have resolved within a week or two.
The Vice-Chair noted that the employer framed the question to the doctor in such a way as to request a finding or an adjudication with respect of Board policy. This is not the appropriate role for the doctor. The Vice-Chair also noted that the doctor did not describe his assumptions regarding what occurred prior to or during the worker's slip and fall or the basis for those assumptions, nor did the doctor reference any studies or empirical research to support his opinion.
The Vice-Chair concluded that the additional peril of ice that resulted in a complete fall to and impact with the ground indicated that the accident was of moderate severity.
The appeal was dismissed.