A construction labourer, while lifting a 75lb drill press over an obstruction, suffered abdominal and back pain. The injuries led to a permanent impairment and as the employer could not provide permanent modified duties, the worker was sponsored into a Work Transition program. The worker also received an 18% NEL (Non-Economic Loss) award due to his injuries.

During the course of his recovery the worker underwent both a CT scan and an MRI exam. Using this information, SEGA requested cost relief on the grounds the worker had a disc herniation and degenerative changes to the lumbar spine.

The appeal was denied by the Case Manager and the Appeals Resolution Officer. The pre-existing conditions were recognized but it was felt that they did not play a role in either the onset of his injuries or in his recovery.

However the Vice-Chair, after reviewing the same information as well the conclusion provided in the Independent File Review by our Orthopedic Surgeon, disagreed with the lower appeal level.

The Vice-Chair stated that these pre-existing conditions were in fact contributing factors to both the onset of the injury and to the prolonged recovery. The worst case scenario of this accident to a person without these symptoms would only have been a few months of absence.

Our client was awarded 50% cost relief however the appeal for SIEF was not initiated until almost three years from the date of accident when the company initially hired SEGA. By the time this decision was rendered, the claim was outside of the five year CAD-7 experience rating window.

The Vice-Chair, noting several factors, ordered the WSIB to complete a retroactive adjustment of the client’s CAD-7 for all of the years this claim affected the company. He stated:

“It is the Board’s responsibility to initiate the SIEF relief entitlement process, not the employer’s.”

In many Tribunal cases the Vice-Chair mentions omissions in the process by the WSIB (such as not seeking a medical opinion when reviewing complex medical information).

The information contained in the quotation above is very interesting. It is our assumption that very few employers would experience instances where they received SIEF from the WSIB where the WSIB initiated the process.