Highlights of Noteworthy Decisions

Decision 322 20
D. Revington
  • Chance event
  • Consequences of injury (residual weakness)
  • Second accident
  • Second Injury and Enhancement Fund {SIEF} (preexisting condition) (prior accident with same employer)
  • Second Injury and Enhancement Fund {SIEF} (severity of accident)

The worker was a glazier who suffered a severe laceration of his left forearm in March 2014, for which the Board granted the worker a 22% NEL award. He suffered a severe laceration of his right forearm in June 2015, for which the Board granted a 16% NEL award. The employer appealed a decision of the Appeals Resolution Officer amalgamating the two claims and denying SIEF relief for the second accident.

The ARO amalgamated the two claims on the grounds the second claim was a secondary condition of the first accident. In arriving at that conclusion the ARO cited Operational Policy Manual, Document No.15-05-01, on resulting from work-related disability/impairment.
The Vice-Chair found that it was not necessary or appropriate to apply Document No. 15-05-01 in the circumstances of this case.
Both of the worker's injuries fell within the definition of accident in section 2(1) of the WSIA as a chance event. The worker was independently entitled to benefits under the WSIA for each accident, because section 13 of the WSIA authorized it. The second accident was a distinct accident that entitled the worker to benefits under the WSIA. Thus, there was no need to have recourse to Document No. 15-05-01 for the second accident.
A secondary condition is not defined in WSIA or in Board policy. The intent of Document No. 15-05-01 is to clarify instances where entitlement to benefits may be extended to injured workers, in situations where it would be uncertain whether a worker would otherwise be entitled to benefits under the WSIA. The situations described in the policy include when a permanent impairment requires a worker to wear an artificial appliance and the worker sustains a subsequent injury from the malfunction of that appliance; and when a worker commits suicide as a result of a work-related injury. The policy also states that entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work-related injury and cites as an example the development of a left knee disability/impairment due to an increased dependency following a work-related injury to the right knee.
None of those situations applied to the facts in this case, where the worker sustained a separate injury to each arm, each of which was independently compensable under the WSIA. The stated purpose of the policy is to outline when the Board may provide benefits to a worker who sustains a secondary physical or psychological condition due to the work-related injury/disease or treatment.
The Vice-Chair concluded that the second accident was not a secondary condition and that the two accidents should not be amalgamated.
The Vice-Chair then considered the employer's entitlement to SIEF relief.
The Board's SIEF policy is meant to address the situation where a worker's disability has been caused or prolonged because of a pre-existing condition, so the cost consequences to the employer from the accident are greater than would otherwise be expected. To address an unexpected length of disability, the policy seeks to forecast the expected disability of an accident from the accident history, and then to offset the financial consequences for the accident employer of a longer-than-expected disability.
Although components of "accident history" are identified in the SIEF policy, the term itself is not defined. There may be a difficulty in evaluating the severity of some accidents for the purposes of the policy, while trying to distinguish between: 1) the extent of disability that the mechanics of the accident would reasonably be expected to cause; and 2) the accident. Considering the first without the second has the potential to result in an incomplete understanding of the accident's severity.
In this case, the ARO considered the mechanics of the second accident to be that the worker was lifting a heavy piece of glass when it slipped and struck his arm causing a severe laceration. The ARO determined this was consistent with a moderate accident. However, the Vice-Chair found that this description of the accident by itself does not do justice to understanding the severity of the accident. It was also necessary to take into account that the worker's right ulnar artery and ulnar nerve were completely severed, and the tendons that control the movements of his hand, wrist, and fingers were lacerated. Applying this analysis, the second accident would be expected to cause serious disability, and a probable permanent disability. The Vice-Chair concluded that the accident would properly be characterized as of major severity.
The pre-accident disability in his left arm resulting from the first accident caused or contributed to the second accident, and was of major medical significance.
The Vice-Chair agreed with prior Tribunal decisions that have found the Board's SIEF policy does not restrict SIEF cost relief for an employer in situations where a worker has a pre-condition or pre-existing disability as a result of a work-related injury with the same employer.
Based on an accident of major severity and a pre-existing condition of major medical significance, the employer was entitled to 50% SIEF relief.
The appeal was allowed.