Highlights of Noteworthy Decisions

Decision 2116 19
E. Smith
  • Second Injury and Enhancement Fund {SIEF} (preexisting condition)
  • Second Injury and Enhancement Fund {SIEF} (preexisting condition) (predisposition)
  • Second Injury and Enhancement Fund {SIEF} (prolonged disability)

The worker suffered low back and right elbow injuries when he fell in October 2015. The Board granted the worker a 1% NEL award for permanent right elbow impairment. The worker appealed a decision of the Appeals Resolution Officer denying the employer SIEF relief.

The worker had a symptomatic, pre-existing low back condition, for which surgery had already been recommended prior to the compensable accident. However, this alone was not a sufficient basis for SIEF relief. The Board granted benefits for the low back for a period of about one month on the basis of aggravation of the pre-existing condition. The low back strain suffered in the compensable accident was not greater than might generally be expected to result from a fall. The low back strain did not have a causative role in the extent of the elbow injury and did not prolong that injury, which is the only continuing compensable injury.
The employer submitted that the pre-existing low back condition prolonged the effects of the compensable strain because the worker was unable to participate in work transition while he underwent surgery for his low back. However, the Vice-Chair found that the SIEF policy applies to the medical significance of a pre-existing condition in prolonging or enhancing the disability itself, not the vocational requirements. 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. Disability refers to loss of earning capacity caused by the compensable injury. The fact that the worker was out of school due to surgery for a pre-existing non-compensable condition does not mean that the pre-existing condition affected the worker's earning capacity from his compensable injury. It is the permanent impairment from the elbow injury that has affected the worker's earning capacity, not the prior low back condition.
The Board paid four weeks of benefits for the non-compensable medical absence for the VR program, in accordance with Board Operational Policy Manual, Document No. 15-06-08. This policy provides for a limited form of "sick leave" to persons receiving workplace insurance benefits. This was not relevant for SIEF purposes. The four weeks of benefits would be paid for any non-compensable medical absence, whether or not pre-existing.
The worker had tattoos, containing metallic oxide, on his elbows. Because of the tattoos, the worker was unable to undergo an MRI on his elbow. The Vice-Chair found that this was not a pre-existing condition that would warrant SIEF relief. There was no medical evidence that the worker's recovery or treatment was affected or otherwise delayed by the cancellation of the MRI.
There was some evidence of pre-existing psychological difficulty. Tribunal decisions have accepted that a worker may be vulnerable to psychological effects, even when the evidence does not indicate a formal diagnosis of a pre-injury psychological illness. However, it is necessary to distinguish between vocational characteristics and personality factors on the one hand and a psychological condition that will attract SIEF relief on the other hand. Vocational characteristics and personality factors may affect the cost of a claim (for example, lengthening the time needed for vocational training or limiting earnings that a worker will be likely to achieve after retraining) but they are not pre-existing conditions that are subject to the SIEF policy, they are not medical conditions that enhance the severity of the compensable injury or prolong the duration of the injury.
In this case, the evidence was not sufficient to determine that a pre-existing medical vulnerability affected the extent or period of recovery from the compensable injury.
The employer was not entitled to SIEF relief. The appeal was dismissed.