Highlights of Noteworthy Decisions

Decision 522 21
K. Jacques
  • Preexisting condition (arthritis)
  • Preexisting condition (obesity)
  • Second Injury and Enhancement Fund {SIEF} (severity of accident)
  • Second Injury and Enhancement Fund {SIEF} (severity of preexisting condition)

The employer was seeking SIEF relief in respect of a work accident where the worker, a nurse, injured her right shoulder and elbow while assisting a 350 lb. patient with reclining in a chair. The worker was pulling up on the footrest while another nurse was pulling down on the backrest.

Referring to Decision No. 960/13, the Vice-Chair found that the work accident was minor in nature.
Although the patient was 350 lbs. and unable to be assistive, the worker was lifting the footrest up, while a colleague exerted force down on the backrest. Although the footrest did not move easily and required additional force, it was not akin to the worker lifting against the full weight of the patient. It was an incident which would be expected to have caused a non-disabling injury or a minor disabling injury.
The worker had a combination of pre-existing conditions including AC joint osteoarthritis (and other pre-existing radiological findings) and obesity, which the employer submitted prolonged her recovery and enhanced her compensable injuries.
The Vice-Chair reviewed Tribunal decisions which have considered pre-existing conditions as moderate and major, including decisions on this question relating specifically to osteoarthritis.
She noted while the SIEF policy defined 'severity' in respect of the nature of the accident, there was no such definition for the nature of pre-existing conditions. She noted Decision No. 548/12, which referenced Decision Nos. 1136/04 and 904/06, which found pre-existing conditions were major where the worker developed a permanent impairment that would not have been anticipated without the involvement of the pre-existing conditions.
In this case, the minor significance obesity and the moderate significance shoulder condition together did not raise the expectation level to one of anticipating a probable permanent impairment. There was nothing in the medical record to suggest such anticipation, and the worker recovered fully with no permanent impairment. The pre-existing conditions in this case were found to be moderate.
With a minor accident and moderate pre-existing condition, the employer was entitled to 75% SIEF relief.
The employer was also granted NEER retroactive adjustment to reflect this SIEF relief.
The appeal was allowed.