WORKERS COMPENSATION APPEAL TRIBUNAL

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1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: [PERSONAL INFORMATION] CASE ID #[PERSONAL INFORMATION] APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #201 Appellant Respondent Patricia McPhail, representing the Employer Brian Waddell, Solicitor representing the Workers Compensation Board Place and Date of Hearing Thursday, October 16, 2014 Quality Inn on the Hill 150 Euston Street Charlottetown, Prince Edward Island Date of Decision January 12, 2015

2 WCAT Decision #201 Page 1 of 9 Facts and Background 1. The Appellant is appealing a decision IR #[PERSONAL INFORMATION] of the Internal Reconsideration Officer (IRO) dated June 26, [Appeal Record Tab 1] 2. The Worker was employed with the Appellant. On November 15, 2010, the Worker was using a [PERSONAL INFORMATION] when he slipped and fell, hearing a popping sound in his right knee. His claim was initially approved for a right knee strain and was updated to right knee meniscal tear with right knee partial medial meniscetomy under case ID [Appeal Record Tab 1] 3. The Worker had a previous accident affecting the same knee in February 1999 which led to osteoarthritis in his right knee. Dr. Steven O Brien gave medical opinions on the preexisting osteoarthritic changes in his knees in 2011 and [Appeal Record Tab 2] 4. After the November 15, 2010 accident, the Worker underwent surgery on his right knee on April 6, 2011 and additionally in August 2012, June and December 2013 and March [Appeal Record Tab 3] 5. In December 2013, an employee with the Office of the Employer Advisor contacted the Workers Compensation Board regarding a request for an update of the file release for the Worker s claim in part, due to the Appellant wanting to ask for cost relief. [Appeal Record Tab 4] 6. In January 2014, Dr. O Brien was asked for his medical opinion regarding evidence that the expected healing time had been extended by a pre-existing condition. [Appeal Record Tab 5] 7. In January 2014, Dr. O Brien provided a medical opinion which stated that the only

3 WCAT Decision #201 Page 2 of 9 pre-existing condition affecting the claim would be the development of degenerative arthritis, which would have been secondary to the workplace injury that initiated the Worker s right knee problems that occurred in February [Appeal Record Tab 6] 8. On January 24, 2014, the Case Coordinator sent a decision to the Appellant denying the apportionment. [Appeal Record Tab 7] 9. On April 24, 2014, the Employer Advisor filed a Request for Internal Reconsideration. [Appeal Record Tab 8] 10. On June 26, 2014, the IRO denied the Appellant s request for Internal Reconsideration. [Appeal Record Tab 1] Issue 11. Was the Board s decision to deny apportionment to the Employer appropriate? Appellant s Argument 12. The Appellant reviewed Section 6(11) of the Workers Compensation Act, R.S.P.E.I. 1988, Cap. W-7.1 ( Act ) which states: 6(11) Where a worker s impairment or loss of earning capacity is, in the opinion of the Board, due in part to an accident and in part to a cause other than an accident, the Board shall (a) determine what portion of the worker s impairment or loss of earning capacity is a result of a cause other than an accident; and (b) charge the portion determined under clause (a) against the rate group to which the worker s employer belonged at the time of the accident. 13. The Appellant further reviewed Section 3 of Policy POL-61 Pre-Existing Condition which states:

4 WCAT Decision #201 Page 3 of 9 3. If a worker s impairment or loss of earning capacity is related in part to an accident and in part to a cause other than an accident, the Workers Compensation Board will determine what portion of the worker s impairment or loss of earning capacity is a result of a cause other than an accident and charge that portion against the rate group to which the worker s employer belonged at the time of the accident pursuant to the Workers Compensation Board policy POL-58 Apportionment. 14. The Appellant further reviewed Policy POL-58 Apportionment which focused on granting apportionment in cases where workers had a pre-existing physical condition. Section 2 of POL-58 states: 2. Where a worker has a pre-existing condition and the expected healing time is extended due to the pre-existing physical condition the costs for compensation beyond the expected healing time for the work injury will be apportioned to the rate group of the employer rather than to the employer. 15. The Appellant argued that in this case, the Worker had a pre-existing condition which was the degenerative osteoarthritis pursuant to Policy POL-61 Pre-Existing Condition in which a pre-existing condition is defined as any condition inherent in the worker at the time of the accident. 16. The Appellant argued that the pre-existing condition impacted the Worker s loss of earning capacity by extending healing time required before he could return to work following his many surgeries after April 6, The Appellant argued that a cause other than the accident that the Appellant believed contributed to the Worker s loss of earning capacity was the Worker s pre-existing degenerative arthritis. The Appellant relied on the December 12, 2011 letter to Dr. Phalen by Dr. Campbell who indicated that the Worker s left knee shows a fairly similar story to his right knee as far as arthritic change. (Appellant s Factum Tab 5 WCAT Decision #185)

5 WCAT Decision #201 Page 4 of The Appellant argued that given the degenerative arthritis in both knees, but with no work related accident involving his left knee; it would suggest that the degenerative arthritis in his right knee, at least in part, was likely related to a cause other than the workplace accident. It was then the Board s responsibility under Section 6(11) of the Act and Policy POL-61 to determine what portion of the degenerative arthritis in the Worker s right knee was not related to an accident and allow apportionment for any loss of earning capacity related. 18. The Appellant further argued that if the Board could not determine the portion of the Worker s loss of earning capacity that was related to the Worker s degenerative arthritis, the degenerative arthritis was still a pre-existing condition which did not stem from the workplace accident. 19. The Appellant reviewed Dr. O Brien s medical opinion of January 14, 2014, regarding the pre-existing condition which indicated that the degenerative arthritis would be secondary to the workplace injury that occurred on February 14, The Appellant further argued that the original injury even though it occurred with the same employer would be under a different case number and therefore, was a pre-existing physical condition unrelated to the accident which initiated the claim. The degenerative arthritis was a condition inherent in the Worker at the time of the accident of November 15, 2010, meaning it was a pre-existing condition which appeared to have extended the expected healing time from the Worker s surgeries. Therefore, apportionment was appropriate under Policy POL-58. Respondent s Argument 21. The Respondent reviewed Section 6(11) of the Act and its interpretation. The Respondent also reviewed Policy POL-58 Apportionment.

6 WCAT Decision #201 Page 5 of The Respondent had asked Dr. O Brien to review the file and answer the question of whether there was any evidence that the expected healing times had been extended. Dr. O Brien concluded there was no other pre-existing condition which could have caused prolongation of the Worker s expected healing time. The Respondent stated that there was no evidence that the Worker s impairment or loss of earning capacity was due in part to a cause other than an accident as required by section 6(11). The full impairment or loss was due to an accident and an accident arising from employment with that same employer, albeit under a different claim and file number. 23. The Respondent argued that Section 6(11) was intended to deal with situations where there was a pre-existing condition which was a contributing cause of disablement or where there may be multiple causes from the combined effect of employment exposure from a number of different employers. 24. The Respondent explained that the concept that was referred to as a second injury fund was to provide equity or fairness to employers who might otherwise be paying for a disablement caused at a time or by an accident unrelated to employment with their own employee. 25. The Respondent quoted Ison at page 276 which stated: It is a discretionary matter and the transfer of costs may be refused because for example, the pre-existing disability resulted from a work accident with the same employer. Ison Workers Compensation in Canada, 2 nd ed. At p. 276 [Respondent s Factum Tab 4] 26. The Respondent argued that since they were dealing with the same employer there would be no rationale for shifting responsibility for the Worker s disablement to the larger rate group.

7 WCAT Decision #201 Page 6 of The Respondent further argued that the apportionment did not fit the definition under Section 6(11) of the Act nor was there a reason to shift responsibility to the larger rate group, simply because they were dealing with two separate disability files. Analysis/Decision 28. Section 6(11) of the Workers Compensation Act states: 6(11) Where a worker s impairment or loss of earning capacity is, in the opinion of the Board, due in part to an accident and in part to a cause other than an accident, the Board shall (a) determine what portion of the worker s impairment or loss of earning capacity is a result of a cause other than an accident; and (b) charge the portion determined under clause (a) against the rate group to which the worker s employer belonged at the time of the accident. 29. Policy POL-58 Apportionment states at paragraphs 1 and 2: 1. A worker who is injured as the result of an accident arising out of and in the course of employment is eligible for compensation, including periods where the expected healing time is delayed due to a pre-existing physical condition. Compensation will continue until such time as the worker, in the opinion of the Workers Compensation Board, has reached a plateau in medical recovery. 2. Where a worker has a pre-existing physical condition and the expected healing time is extended due to the pre-existing physical condition the costs for compensation beyond the expected healing time for the work injury will be apportioned to the rate group of the employer rather than to the employer. 30. On November 15, 2010, the Worker was using a pallet jack when he slipped and fell, hearing a popping sound in his right knee. The claim was initially approved for a right knee strain and was updated to right knee meniscal tear with right knee partial medial meniscetomy under Case ID [PERSONAL INFORMATION].

8 WCAT Decision #201 Page 7 of There was a previous accident with the same employer on the same knee on February 14, 1999 under Case ID [PERSONAL INFORMATION]. 32. The Respondent determined that there was no medical evidence to suggest the Worker s recovery from his right knee injury on November 15, 2010 had been prolonged by a preexisting condition. 33. The medical officer of the Respondent, Dr. Steven O Brien, was asked to review the file and asked whether there was evidence that the expected healing times had been extended. Dr. O Brien concluded there was no other pre-existing condition which could have caused prolongation of the Worker s expected healing time. 34. Dr. O Brien in his letter to Craig Abbott on January 14, 2014, stated at paragraph 3: It is well accepted that arthroscopic meniscectomy does cause an acceleration of osteoarthritic degenerative type changes and these changes would be related to both the surgery in 2001 as a result of his workplace injury at [PERSONAL INFORMATION] on February 14, 1999 and also his re-injury of November 15, 2010 & subsequent surgery when a medial partial meniscectomy was performed. [Appeal Record Tab 5] 35. Dr. O Brien concluded, Therefore, there was no other pre-existing condition that would have caused prolongation of [PERSONAL INFORMATION] expected healing times and subsequent surgery requiring total knee replacement; and therefore, [PERSONAL INFORMATION] healing time was not extended because of any non-work related issue. [Appeal Record Tab 5] 36. There was no evidence that the Worker s impairment or loss of earning capacity was due in part to a cause other than an accident pursuant to section 6(11). The Worker s full loss was due to an accident arising from employment with the same employer.

9 WCAT Decision #201 Page 8 of In the Respondent s Factum, they commented about the second injury fund. 38. It is the Tribunal s understanding that the fund is put in place to provide equity or fairness to employers who might be paying for a disablement that is unrelated to their employment. 39. The Tribunal notes that in Ison at page 276, Section General Principle states: Part of the cost of an injury, or sometimes the whole of the cost, might be charged to a Second Injury Fund, where: (a) A pre-existing condition of the worker was a contributing cause of the disablement; (b) The gravity or duration of the disability was enhanced by a pre-existing condition; or (c) A pre-existing condition enhanced the cost of the disablement in some other way. It goes on to state that the second injury fund is also commonly used in disease cases involving multiple etiology. The second injury fund may also look at pre-existing disabilities. However, the Tribunal does note, as did the Respondent in its Factum, that it states it is a discretionary matter, and the transfer of costs may be refused because, for example, the pre-existing disability resulted from a work accident with the same employer. 40. Two accidents occurred with the same employer. Dr. O Brien stated that there was no other pre-existing condition which would have caused prolongation of the Worker s expected healing times and subsequent recovery requiring total knee replacement; and therefore, his healing time was not extended because of any non-work related issues. 41. There is no evidence that the Worker s degenerative arthritis is the cause of the Worker being off for lengthier periods than would ordinarily be expected following surgery. 42. The Tribunal finds that the request for apportionment does not fit the definition under Section 6(11).

10 WCAT Decision #201 Page 9 of 9 The Tribunal also finds that Policy POL-58 does not factor in as there is no evidence that a non-work related pre-existing condition extended the Worker s healing time. 43. The Tribunal finds that the Board s decision to deny apportionment was appropriate and, therefore, the Tribunal dismisses the appeal. 44. We thank counsel for their materials and submissions. Dated this 12th day of January P. Alanna Taylor, Chair Workers Compensation Appeal Tribunal Concurred: Donald Turner, Employer Representative Libba Mobbs, Worker Representative

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