A recent Tribunal decision reflects the importance of submitting an Independent Medical opinion when an appeal is taken to Workplace Safety and Insurance Appeals Tribunal.

In WSIAT decision 1293/13 a worker suffered a knee injury, to the same knee, in March and May of 2008. Prior to this, the worker had surgery to the same knee 14 years earlier. When the case was reviewed by the Nurse Case Manager, she recommended the claim be reviewed for cost relief as she found evidence that the worker had ruptured a Baker’s Cyst in the May incident and that the March 2008 injury occurred because of the cyst.

The case was referred to the WSIB Medical Consultant. In his submission he erred and noted only the May 2008 incident. As a result, the Case Manager responsible for the application for cost relief denied the request as they came to the conclusion that the March incident caused the cyst to occur.

The Vice-Chair noted a number of errors made in decisions of request for cost relief:

• A Non-Economic Loss (NEL) award was granted in this case due the existence of the cyst and meniscus tears however there is no medical opinion that stated either the March or May 2008 incident caused the cyst or tears
• The Case manager failed to distinguish between the existence of the cyst and the fact the cyst had ruptured
• The Medical Consultant did not address the impact of the March incident against the impact of incident in May but did describe the pre-existing condition as major
• The Case Manager did not clarify with the Medical Consultant if the cyst pre-dated the March 2008 incident
• The Appeals Resolution Officer concluded the worker’s previous knee surgery was unlikely to be a casual factor to their current injuries

The Vice-Chair granted 90% Cost Relief for this claim. She noted the Independent Medical opinion from an Orthopedic Specialist that was provided by SE-GA as part of our submission to the Tribunal.

• The prior surgery was the causal factor for excessive fluid in the knee as this type of condition develops from symptoms such as arthritis or mechanical problems within the knee
• The worker also had some tears to the meniscus in the knee and that the pre-existing degenerative changes to the knee would be expected to cause the meniscus tears as the accident itself (raising from a crouched position) would not cause an injury
• The Orthopedist summarized that without a major pre-existing pathology, a worker would not suffer an injury from the incidents of March and May 2008
• The Vice-Chair stated the Orthopedist clarified the Medical Evidence

This is a claim where the medical evidence of a pre-existing condition was always present but errors or incorrect conclusions caused the application for cost relief to be denied by both the Case Manager and the Appeals Resolution Officer. The amount of cost relief for this claim was 0% prior to the hearing to 90% after the Vice-Chair’s decision.

A Registered Nurse, in her late forties with a minor history of back injuries, was bathing a patient when she twisted her body and felt the onset of pain and back spasms.

She participated in Modified Work between the dates of her accident in early October 2009 through late March 2010. Her employer paid her for her hours worked and she received partial Loss of Earnings (wage top-up) from the WSIB to maintain her normal weekly earnings. She returned to normal duties in April 2010.

Both the Case Manager and the Appeals Resolution Officer denied the requests for cost relief as they determined the RN’s recovery was consistent with the expected healing time for a soft tissue back injury. Further, as her last reported incident of back pain caused by a workplace injury occurred in 2000 they felt that there was no link between the incidents.

SEGA’s argument at the hearing was two-fold:

1) We supplied an Independent Medical Opinion based upon the findings of the MRI

2) Board Policy allows for Cost Relief not only if the recovery is prolonged by the pre-existing condition but also if the workplace injury is enhanced by the pre-existing condition.

The Vice-Chair accepted both of these arguments (particularly as the ARO did not seek a medical opinion) and awarded our client 50% SIEF Cost Relief.

There are numerous things of note with this decision as discussed above. What should be understood by the reader is the employer is partly responsible for the high NEER costs associated with this claim.

The Registered Nurse was absent from work for only a short period of time throughout the six months that followed the date of accident and participated in modified duties (which is the correct course of action). HOWEVER, by not maintaining the RN’s normal rate of pay, requiring the WSIB to provide partial LOE benefits, this claim remained active far longer than necessary and increased the NEER costs by tens of thousands of dollars. This impact was enhanced by the fact the period of LOE benefits crossed into the next calendar year.

An employer should always* provide a full days wages for partial work days as a measure of cost control as the cost to the employer of LOE benefits is 10:1.

• Consult SEGA to review your NEER to discuss the particulars of the cost impact for any claim as the “net” impact differs from company to company

The Tribunal, at the request of SEGA on behalf of our client, increased the quantum of cost relief from a 2008 injury from 50% to 75%. This decision was not made until after September 30th of 2012 and as a result, the employer did not automatically receive a financial benefit as a result of this decision.

SEGA argued that the employer had shown due diligence in their pursuit of the adjustment and that the company should receive a retroactive adjustment. The Vice-Chair asked SE-GA to make a separate application as to the merits of the retroactive adjustment request.

SEGA provided two separate WSIAT decisions, as well as justification for the delay, at no fault of the employer, from the initial application for Cost Relief to the date of decision of the Tribunal.

The Vice-Chair granted our request and citing the exceptional circumstances of this case, ordered the retroactive adjustment.

It is likely the Vice-Chair would not have granted the retroactive adjustment without SE-GA’s knowledge and research of precedent on NEER retroactive recalculations. Knowing how WSIAT operates is integral to gaining successful decisions at the Tribunal.

The facts of this case are that a woman injured her shoulder during the normal course of her duties. Her injuries, identified by an MRI exam, were moderate tendinosis of the supraspinatus tendon antereriorly, along with a small low-grade linear partial thickness articular surface tear involving mid to posterior fibers of the insertion.

SEGA applied for cost relief on the grounds that her pre-existing conditions not only were the cause of her injuries, but that her recovery was prolonged as a result of those conditions.

The Case Manager and the Appeals Resolution office both denied our request for cost relief. In part, their argument was that since the worker had been able to perform her duties without any pain prior to the accident, that the injuries were in fact the result of the accident and therefore were not pre-existing.

The Vice-Chair noted that the lower levels erred in their conclusions:

This is a different test than what the Case Manager and the ARO applied. They were looking for “objective evidence” of a pre-existing condition. Both denied SIEF relief because the worker was able to do her regular work prior to the workplace accident, and there was no evidence of a prior claim or prior treatment for the shoulder. However, the definition of a “pre-existing condition” clearly states that it is an asymptomatic condition which only becomes manifest post-accident. By definition, then, such a condition could not already have been treated, and could not have affected the worker’s ability to perform on the job.

Asymptomatic means “showing no evidence of the disease”. Therefore a pre-existing condition would only become evident after the accident and the lack of evidence pre-accident should be expected.

Our client was awarded 75% cost relief as the Vice-Chair felt the above noted pre-existing conditions were both the cause of the workplace injury and prolonged her recovery.

As this decision came after the claim was outside of the NEER window, the Vice-Chair also ordered that the company receive a retroactive adjustment so that would receive true cost relief.

Often the work provided by SE-GA is to rectify WSIB errors that the layperson would not recognize as Board errors.

Two nurses were using a Hoyer lift to move a patient from a bed to a wheel chair when one of the nurses felt the immediate onset of pain in her right hip. As this accident occurred at a Hospital, she received medical attention very quickly.

After numerous medical examinations it was determined that she had an underlying condition of osteoarthritis in her right hip. The WSIB, although they denied the initial request for cost relief, granted our client 50% SIEF, determining the workplace accident was considered of moderate severity moderate as was the extent of her pre-existing condition.

SEGA appealed this decision on two counts:

• As all procedures were followed to safely move the patient the accident should be considered minor
• A minor accident means that the outcome of the accident should not cause a significant injury
• The pre-existing condition should be considered major as the outcome of the accident (the nurse required total right hip replacement) as only a minor absence of work would be expected from this accident
• o A minor accident means that the outcome of the accident should not cause a significant injury

The Vice-Chair agreed with these arguments and the accident which was classified Moderate (accident)/Moderate (pre-existing condition) was now classified Minor (accident)/Major (pre-existing condition).

The SIEF award was increased from 50% to 90%

This is a case where the WSIB did all of the right things:

• They sent the injured worker to multiple examinations to determine the cause of her pain so that the correct decision was made to improve her injury/quality of life
• The Case Manager sent the file to the WSIB’s medical consultant
• SIEF was granted by the Case Manager as a result of the report

However that did not mean the correct percentage of cost relief was assigned to the file.

The WSIB determines Cost Relief based upon two “severity” measures – that of the accident and of the pre-existing condition. There was some miscommunication about how the accident occurred. Without an appeal that matter would not have clarified. This allowed the accident to be downgraded to minor.

Similarly the expert medical opinion combined with the existing medical information changed the severity of the pre-existing condition to major. The net effect of these changes generated a very significant savings for this Hospital.

The worker was injured when, as a result of a furnace malfunction, he used a hook to carry eight (8) 60lb pieces 20 feet to a functioning furnace. It was recognized the worker suffered from three pre-existing conditions and was using Oxycontin as a pain management tool at the time of the accident.

The determining factors in awarding cost relief are both the severity of pre-existing condition and the severity of the accident. The Case Manager granted 25% SIEF cost relief on the grounds the Pre-Existing Conditions were MINOR while severity of the accident was MODERATE (meaning the work activity was likely to cause a disabling injury).

SEGA appealed this decision to the Appeals Resolution Officer who increased the degree of SIEF to 50% as he changed the accident severity to MINOR, as the work activity at the time of the accident was within the normal requirements of the job.

SEGA further appealed this decision to the Tribunal as we felt the severity of the pre-existing conditions had not properly been considered. As a result of his injuries, the injured worker received a 14% Non-Economic Loss Award and was placed into a Labour Market Re-Entry Program as he could not return to his previous job given the permanent extent of his injuries.

The Vice-Chair agreed and increased the cost relief award to 75%. The employer received a retroactive adjustment to their previous NEER as the claim was outside of the NEER window at the time of the decision.

SIEF – Application to Employer Costs

Medical Significance of Pre-existing Condition*	Severity of Accident**	Percentage of Cost Transfer
Minor	Minor Moderate Major	50% 25% 0%
Moderate	Minor Moderate Major	75% 50% 25%
Major	Minor Moderate Major	90% – 100% 75% 50%

The importance of appealing WSIB decisions is best illustrated here. The WSIB with the same information that was presented to the Vice-Chair came to a very different conclusion as to both the severity of the pre-existing condition and the severity of the accident. The financial benefit of this decision (the net increase from 25% to 75% SIEF) saved our client well into the tens of thousands of dollars.

A personal support worker was injured while assisting a client in bathing. The patient slipped and grabbed the arm of his PSW. The worker felt the immediate onset of severe lower back pain. The accident occurred in December of 2009.

As a result of the injury the worker underwent an MRI scan in May 2010. The findings of the MRI included a mild degenerative change in the lower lumbar spine and right paracentral posterior disc herniation. Surgery was performed in February of 2011 to alleviate the pain.

The WSIB medical’s advisor denied the request for cost relief for this claim. He concluded the worker’s injury and pain were wholly consistent with the accident. The Vice-Chair disagreed, stating that he preferred the opinion supplied from our Independent Medical review of the case file. Specifically that the pre-existing condition weakened the affected disc and this injury would likely not have occurred if the accident had happened with any other worker who did not suffer from degenerative disc disease.

Prior to the hearing our client had 0% cost relief and was awarded 50% cost relief by the Vice-Chair.

It is vital to supply an Independent Medical opinion when a case is taken to the Tribunal. Often it is used to provide a contrary opinion to that of the WSIB. In many cases it may be the only medical information made available to the Vice-Chair.

A young woman, with no prior history that would indicate her pre-existing condition, did not directly have a traditional workplace accident but instead encountered neck and back pain as well as debilitating headaches very quickly after her date of hire.

As her condition did not improve over a three month period of physiotherapy, she was sent for an MRI. It was discovered she has a Chiari 1 malformation (a compression of the brain stem and spinal cord which interferes with the flow of spinal fluid). It was determined her best course of action was corrective surgery and she was symptom free shortly thereafter.

The application for cost relief was denied as the WSIB argued her absence from work was within the normal time period for such injuries. The WSIB had all of the medical information concerning this file.

The Vice Chair recognized the merit of our argument that, but for the existence of her pre-existing condition, there would not have been any absence from the workplace. Our client was awarded 75% cost relief.

Cost Relief can be awarded for two reasons: how the pre-existing condition contributed to the current workplace injury and/or how the pre-existing condition is a factor in extending the injured worker’s recovery beyond expectations. Without continuing the appeal to the Tribunal this company would have been responsible for 100% of the costs of this (NEER) claim.

The facts of the case are routine. A 45 year old worker slipped on ice on the property but outside the building of his workplace. The accident was determined to be moderate in nature meaning that some form of injury could be expected to occur from the accident.

The worker returned to work in about four weeks time but continued to complain of increasing back pain. X-rays did not show any traumatic injury but the worker’s pain increased over time. Four months after the date of accident the worker underwent an MRI scan which confirmed a degenerative disc condition.

SE-GA provided an Independent Medical Opinion (the only medical opinion made available to the Vice-Chair) that stated that if the back injury was the result of the accident, the symptoms would have been evident very quickly after the accident. The fact that the symptoms did not occur until well into the life of the claim, indicated that the pain was related to the aggravation of the pre-existing degenerative disc injury. The medical information supported the Tribunal’s own methodology for back injuries.

This worker’s back was more likely to suffer from a fall than a typical person. The Vice Chair deemed the extent of the pre-existing condition to be moderate and our client (who had previously been denied SIEF) was awarded 50% Cost Relief.

It is vital to supply an Independent Medical opinion when a case is taken to the Tribunal. In this instance it was the only medical information made available to the Vice-Chair (as the ARO had not sought a medical opinion) and was key to the decision that benefitted our client.

A man was injured as a result of a heavy lifting accident (five-men were required to safely lift the heavy object) and suffered a rotator cuff injury. After a period of absence the injured worker participated in modified duties until the operation was closed.His employer had been acquired and the new company closed his branch thereby terminating his employment.

The injured worker required surgery and was placed into Labour Market Re-Entry to acquire skills that would not require significant manual labour. The WSIB continued full Loss of Earnings benefits until the man obtained new employment that met his previous income level.

The WSIB denied the request for SIEF as the injured worker had never before suffered a workplace injury. The Vice-Chair disagreed, stating the pre-existing condition was ASYMPTOMATIC.

With respect, a pre-existing condition, by definition (see the above quotation from OPM Document # 14-05-03), is a condition which was asymptomatic prior to the workplace accident, and which only became apparent after the accident. It therefore is not possible to decide whether there was a pre-existing (i.e., asymptomatic) condition prior to the workplace accident by looking at whether the worker had previously been treated for such a condition.

The Vice-Chair determined the injury was a Tight Subacrominal Space in his shoulder and that this was a genetic condition. Our client was awarded 75% cost relief and due to the delay (resulting from the appeal process) in bringing this file to the Tribunal, the WSIB was ordered to make a manual adjustment to their NEER assessments so that the client received the true financial benefit of the decision.

What is very interesting about this file is that the costs of this claim were not absorbed by the accident employer but by the acquiring company. They became responsible for the costs as they acquired both the assets and liabilities of the old company.

Mismanaging the WSIB aspects, whether you are the buyer or seller, can dramatically change the true costs of the asset. If your company is involved in a similar transaction have SE-GA conduct a thorough review of the financial impact of the WSIB obligations and opportunities.

In 2009, a lifelong 64 year old truck driver suffered a permanent impairment when he lifted a 10 pound chain (a normal activity for a truck driver) and suffered a biceps rupture and right rotator cuff impingement. The worker received a 9% Non-Economic Loss (NEL) award.

SEGA requested, and was denied, cost relief by both the WSIB Case Manager and the Appeals Resolution Officer. They argued that the worker would be expected to have degenerative impacts to his body as a result of his age and employment history.

SEGA submitted an Independent Medical opinion from an eminent (as noted by the Vice-Chair) Orthopedic Surgeon that the injured worker had Moderate to Severe tendonitis and mild osteoarthritis that contributed to the impact of the injury. Further, it was shown that the physiotherapist’s report indicated that multiple pre-existing conditions were delaying the injured worker’s recovery. These findings were found in the MRI the worker underwent later in 2009.

The prescribed therapy for such an injury includes rest and ice with an expectation the worker would be fully healed in 2 to 3 months. This worker had a similar injury in 2006 and recovered within the expected time period.

The Vice-Chair awarded our client 75% Cost Relief. By the time this decision was rendered the claim was outside of the company’s 4 year NEER window and the Vice-Chair further ruled that the employer should receive a retroactive adjustment so that they received TRUE cost relief against all costs of this claim.

The Vice Chair was able to rule in favour of the retroactive adjustment as the Case Manager did not act upon the medical evidence contained in the MRI and made their decision without input from a medical professional.

In this instance the Vice-Chair determined that the WSIB had erred in their conclusions and had not sought expert advice in their decision making. The evidence presented by SE-GA countered the decision of the Case Manager/ARO, allowing the Vice-Chair to find in the employer’s favour.

NEER NEER A Filing Clerk developed a right elbow impairment as a result of her duties (stapling and unstapling documents) that was diagnosed as LATERAL EPICONDYLITIS (tennis elbow). The worker was absent from work and received LOSS OF EARNING BENEFITS for 15 months as a result of this accident. The Case Manager deemed this as MODERATE accident stating the repetitive nature of this would work would likely cause a disabling injury. The worker was determined to have a permanent impairment and received a 5% Non Economic Loss (NEL) pension.

SEGA applied for Second Injury Enhancement Fund (SIEF cost relief) based upon the medical evidence, including an MRI and was denied by the Case Manager on October 21, 2010. That decision was affirmed by the Appeals Resolution Officer on July 15, 2011.

SEGA appealed this decision to the Tribunal (WSIAT) and submitted our arguments to a written hearing (November 19, 2012 – over two years from the initial denial by the Case Manager).

Our appeal was granted by the Vice-Chair, who provided their opinion on multiple matters:

• a) The severity of this accident is minor. The Vice-Chair agreed with our opinion that the probability of this disability was unlikely as a result of these work activities. A “normal” person would likely NOT have suffered an injury as a result of this work. (this increases the quantum {percentage} of cost relief available)
• b) The MRI showed a pre-existing condition. The MRI revealed the worker suffered from EXOSTOSIS; she had a bone growth on her elbow which contributed to her pain. She had surgery as a result of her injury and the bone growth was removed. The Vice Chair agreed the EXOSTOSIS made it more likely this worker would “develop a disability of greater severity that a normal person”.
• c) SMOKING and OBESITY are Pre-Existing Conditions. We submitted this following medical research:

Tendonitis causes

Risk factors for tendonitis include repetitive motion, trauma, thermal injury to the tendon, use of certain antibiotics and smoking.

Tendonitis can also incur in people with certain diseases such as rheumatoid arthritis, obesity and diabetes.

Additional medical research showed:

Physical load factors, smoking and obesity are strong determinants of EPICONDYLITIS.

The Vice-Chair recognized the worker’s pre-existing conditions contributed to both the impact of their injuries and to the prolonging of their recovery.

Our client was awarded 50% SIEF Cost Relief.

In 2009, a lifelong 64 year old truck driver suffered a permanent impairment when he lifted a 10 pound chain (a normal activity for a truck driver) and suffered a biceps rupture and right rotator cuff impingement. The worker received a 9% Non-Economic Loss (NEL) award.

SEGA requested, and was denied, cost relief by both the WSIB Case Manager and the Appeals Resolution Officer. They argued that the worker would be expected to have degenerative impacts to his body as a result of his age and employment history.

SEGA submitted an Independent Medical opinion from an eminent (as noted by the Vice-Chair) Orthopedic Surgeon that the injured worker had Moderate to Severe tendonitis and mild osteoarthritis that contributed to the impact of the injury. Further, it was shown that the physiotherapist’s report indicated that multiple pre-existing conditions were delaying the injured worker’s recovery. These findings were found in the MRI the worker underwent later in 2009.

The prescribed therapy for such an injury includes rest and ice with an expectation the worker would be fully healed in 2 to 3 months. This worker had a similar injury in 2006 and recovered within the expected time period.

The Vice-Chair awarded our client 75% Cost Relief. By the time this decision was rendered the claim was outside of the company’s 4 year NEER window and the Vice-Chair further ruled that the employer should receive a retroactive adjustment so that they received TRUE cost relief against all costs of this claim.

The Vice Chair was able to rule in favour of the retroactive adjustment as the Case Manager did not act upon the medical evidence contained in the MRI and made their decision without input from a medical professional.

In this instance the Vice-Chair determined that the WSIB had erred in their conclusions and had not sought expert advice in their decision making. The evidence presented by SE-GA countered the decision of the Case Manager/ARO, allowing the Vice-Chair to find in the employer’s favour.

A 64 year old truck driver injured his right shoulder while lifting a 10 pound chain (routine work) in December 2008. The expected time of recover from such an injury is 2-3 months with rest and ice. This worker was absent from work due to his workplace injury for 2 full years and received a 9% non-economic loss award due to this persisting impairment.

As part of his recovery the worker underwent an MRI exam in May 2009. Our submissions to the Case Worker through the Appeals Resolution Officer up to the Tribunal emphasized the MRI revealed 2 pre-existing conditions: tendinosis in 2 separate tendons as well as osteoarthritis affecting 2 joints. This information was discounted by both lower levels of appeal as they felt the pre-existing conditions were more consistent with aging than as the result of the workplace accident.

The Vice-Chair recognized that our Independent Medical Opinion was provided by an eminent orthopedic surgeon and accepted his opinion that the pre-existing conditions were a contributing factor to both the extent of this worker’s injury as well as to the prolonging of his recovery.

As a result the Vice-Chair determined this accident was MINOR in nature and the worker had MODERATE pre-existing conditions and awarded our client 75% Cost Relief.

In 2009, a lifelong 64 year old truck driver suffered a permanent impairment when he lifted a 10 pound chain (a normal activity for a truck driver) and suffered a biceps rupture and right rotator cuff impingement. The worker received a 9% Non-Economic Loss (NEL) award.

SEGA requested, and was denied, cost relief by both the WSIB Case Manager and the Appeals Resolution Officer. They argued that the worker would be expected to have degenerative impacts to his body as a result of his age and employment history.

SEGA submitted an Independent Medical opinion from an eminent (as noted by the Vice-Chair) Orthopedic Surgeon that the injured worker had Moderate to Severe tendonitis and mild osteoarthritis that contributed to the impact of the injury. Further, it was shown that the physiotherapist’s report indicated that multiple pre-existing conditions were delaying the injured worker’s recovery. These findings were found in the MRI the worker underwent later in 2009.

The prescribed therapy for such an injury includes rest and ice with an expectation the worker would be fully healed in 2 to 3 months. This worker had a similar injury in 2006 and recovered within the expected time period.

The Vice-Chair awarded our client 75% Cost Relief. By the time this decision was rendered the claim was outside of the company’s 4 year NEER window and the Vice-Chair further ruled that the employer should receive a retroactive adjustment so that they received TRUE cost relief against all costs of this claim.

The Vice Chair was able to rule in favour of the retroactive adjustment as the Case Manager did not act upon the medical evidence contained in the MRI and made their decision without input from a medical professional.

In this instance the Vice-Chair determined that the WSIB had erred in their conclusions and had not sought expert advice in their decision making. The evidence presented by SE-GA countered the decision of the Case Manager/ARO, allowing the Vice-Chair to find in the employer’s favour.

A worker experienced gradual on set of low back pain and was using pain medication to manage the injury until he was unable to continue working. Initially the worker was denied a claim but his loss of earnings was reinstated by a Tribunal decision.

The application for cost relief was denied by the Case Manager and upon appeal to the Appeals Resolution Officer 25% SIEF was granted. SE-GA, using the medical evidence that from the injured worker’s appeal was able to show that the pre-existing condition was MODERATE and the accident was MINOR.

The Vice-Chair granted 75% SIEF Cost Relief. The significance of this decision is the Vice-Chair recognized the errors of the Case Manager and the ARO.

The Vice-Chair was able to award TRUE COST RELIEF even though this accident had now moved to “outside” of the four year NEER experience rating window.

The issues in this claim are routine: the worker suffered a fall and the extent of her injuries was impacted by an asymptomatic pre-existing discoid meniscus knee injury. The Vice-Chair awarded 50% Cost Relief.

As part of our submission SEGA submitted information from 5 websites including Wikipedia. The Vice-Chair found 3 of the sites had little to no probative value, but that one was of substantive value and used that information when making his decision.

It is not the volume of information that supports your submissions to the Tribunal, it is the quality.

A 27 year old worker was injured while lifting a vault as part of a three person lift team. SE-GA was able to successfully demonstrate that accident should be reclassified from MODERATE to MINOR. This resulted in an increase of 25% Cost Relief by the Appeals Resolution Officer to 50% at the Tribunal.

The Appeal’s Resolution Officer denied our request for cost relief citing that the worker’s pre-existing injury was the expected outcome for this worker given their age and employment history. SEGA responds with a precedent set by our team that it is not the origin of the pre-existing condition that is relevant when it comes to granting cost relief. The only relevant issue is does the worker have a pre-existing condition that contributed to the costs of this WSIB claim. The Vice-Chair accepted our submissions. The case went from 0% to 75% Cost Relief.

As the date of accident had shifted to outside of the NEER window SEGA was able to argue that our client was entitled to a Retroactive NEER calculation adjustment .

This claim concerned a nurse who slipped on ice in her employer’s parking lot and incurred multiple injuries on December 29, 2009. The nurse, at the time of the injury, revealed to her employer that she had prior low back and hand injuries but she had no prior claims.

The submissions by SE-GA originally resulted in 50% Cost Relief to her employer in the grounds that she had incurred a minor injury and had minor pre-existing conditions. We appealed as we felt the accident employer was entitled to 75% cost relief based upon all of the evidence involved with this claims. The Appeals Resolution Office (ARO) determined that the accident should be considered moderate in nature and reduced the cost relief to 25%.

On behalf of our client we submitted several prior Tribunal decisions that recognized that without extraordinary circumstances falls should be considered MINOR. Further the nurse continued to work for more than week after her accident date before she sought medical attention. The Vice-Chair agreed and reversed the decision of the ARO and reclassified this accident as MINOR.

Further our appeal included the degree of the nurse’s pre-existing conditions, which were classified as minor by the case manager. By citing medical evidence dating back to 2001 of back pain that extended into both her right and left legs and this worker has suffered from episodes of significant pain over the ensuing years, and her condition was degenerative. The Vice-Chair agreed with our submissions that the pre-existing condition is Moderate.

By referring to the table below it can be seen that the degree of both of the significance of accident and of the pre-existing conditions are critical in determining the quantum of cost relief.

SIEF – Application to Employer Costs Medical Significance of Pre-existing Condition*	Severity of Accident**	Percentage of Cost Transfer
Minor	Minor Moderate Major	50% 25% 0%
Moderate	Minor Moderate Major	75% 50% 25%
Major	Minor Moderate Major	90% – 100% 75% 50%

A 30 year old truck driver slipped while exiting his truck and injured his back when his plant foot slipped on the ice. The worker missed one year of work due to his injuries.

Based upon the evidence on the file the employer requested cost relief and was denied by the case manager (and denied once again when the employer asked for reconsideration).

Upon appeal the ARO granted 50% SIEF based on a combination of the moderate pre-existing condition and a moderately severe accident.

At the Tribunal SEGA argued, and was accepted by the Vice-Chair, that the accident should be considered MINOR in nature. Cost Relief was increased to 75%

A 57 year old mechanic fell while carrying several parts in the shop where he was employed and suffered a rotator cuff injury. The WSIB classified this accident as moderate (meaning a lost time accident was the expected outcome) and while there was evidence of multiple pre-existing conditions all applications for cost relief were denied.

SEGA argued at the Tribunal the accident should be minor (meaning that a worker should be expected to return to normal duties within a short absence from work due to their injuries) as the worker did not suffer a traumatic injury and no emergency personnel were required so that the injured worker could receive treatment.

With respect to the issue of a pre-existing condition the Independent Medical Evaluation provided to the Tribunal by SEGA showed that the worker had multiple conditions that showed the weakening of the tendons in the shoulder that would make it more vulnerable to trauma. His conclusion was that the fall should have resulted in a contusion or a strain; therefore the pre-existing conditions should be considered major.

The Vice Chair determined that the accident should be considered minor and that the pre-existing conditions were moderate and awarded our client 75% cost relief. Further that the delays in getting this issue were caused by the WSIB and the company should receive a retroactive NEER adjustment.

The worker was required to open a valve that required greater force than usually required to open most valves. Further the valve was in an awkward position and the worker had to lean across a guard rail. All prior applications for cost relief were denied.

The Vice-Chair recognized SEGA’s argument the worker suffered from a degenerative cervical condition heightened the impact of the injury from turning the valve in such an awkward body position. The company was awarded 25% cost relief.

A cleaner picked up a light bag of garbage (estimated to be 5 pounds). 25% Cost relief was granted at the Operating level based upon an accident of moderate severity and a pre-existing condition of minor medical significance.

Upon appeal SEGA was successful in arguing that the accident should be classified as being of minor severity and Cost Relief was increased to 50%.

Worker slipped on the floor. Worker’s pre-existing obesity was not initially considered relevant. SEGA was able to successfully demonstrate the relation to recovery time and obtain 25% cost relief.

A 63 year old Nurse slipped on a wet floor, twisting her knee and suffering a torn meniscus as she fell.

The application for cost relief was denied as the worker returned to her duties within normal recovery times.

SEGA argued that that the outcome of this injury was likely as the worker had a pre-existing degenerative condition that made her more susceptible to the torn meniscus and enhanced the severity of her injury. Further by applying the decision from a previous WSIAT decision that recognized how tears that are the result of degenerative changes are different from normal tears. The Vice-Chair accepted these arguments and awarded 50% Cost Relief.

In this case the worker suffered a shoulder injury in 2007 and was placed into modified duties for her duration of employment with the employer.

SEGA made the initial application for cost relief based upon multiple pre-existing conditions. These applications were denied and this case made its way to the Tribunal. This case was not heard until 2011, when the date of accident was “outside” of the three year window.

The Vice-Chair agreed with our arguments and granted 25% SIEF. However, the Vice-Chair found there was no “exceptional” circumstances that would allow for a retroactive NEER adjustment. Therefore while SIEF was granted there was no actual savings for the employer. The employer realized an Accident Cost Credit but no actual savings.

As per our contingency agreement, even though we expended considerable time and effort to gain this decision we could not invoice this employer. The SIEF resulted in $0.00 in actual savings and our fee is based upon actual savings.

The WSIB awarded 90% SIEF in for a 2003 to the employer. In 2005 the WSIB awarded the injured worker a 13% NEL award but did not apply the cost relief to the additional cost of the claim due to the NEL. SEGA was successful at WSIAT, six years after the initial error, and the 90% SIEF was applied to the NEL costs as well as the interest that savings would have generated over the 6 subsequent years.

In June 1986 a worker was granted a claim for workplace noise-induced hearing loss. In 1987 it was determined that these costs should not be charged to the employer but should instead be transferred to the collective liability of the rate group as a whole.

The appeal was presented in 1999, 13 years after the date of accident. The WSIB argued that the costs should be charged to the accident employer as the claim was allowed prior to the change in WSIB policy.

We cited and articulated WSIB legislation in support of our argument and these arguments were accepted by the Vice-Chair. All costs were removed from the employer.

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.

A Roofer was slammed into a wall by his supervisor in January 2010 and suffered left side elbow and shoulder injuries. These injuries proved to be significant as the worker received full Loss of Earnings benefits for most of 2010.

Both the Case Manager and the Appeals Resolution Officer did not feel there was a link between the existing medical evidence and the workplace injuries that would allow for SIEF cost relief to be applied to this claim.

SEGA submitted an Independent File Review of the same medical information and the Vice-Chair concluded the following:

1) The pathology of the injury was inconsistent with the accident

2) The degenerative conditions of affected areas were greater than would be expected for a 47 year old man and that the cause of the degeneration was that the injured worker was a long term smoker.

3) The smoking played a part in both the onset of the injury and in prolonging the worker’s recovery

Our client received 75% cost relief against the costs of the claim as it was determined the injured worker had a Moderate pre-existing condition and the accident was of a minor nature (meaning the expected outcome of this accident would only be a very minor, non-disabling, injury)

Every costly claim, regardless of the nature of the accident, should be reviewed for cost relief. There are many reasons as to why a company should receive SIEF but it takes years of experience and specific expertise in order to establish these facts. In many cases cost relief is denied at lower levels of the appeals process without the decision maker seeking an internal medical opinion.

SEGA appealed a decision to deny cost relief to an employer where the injured worker had a very minor fall but suffered major injuries to his shoulder and AC joint.

The 61 year old worker grabbed a rack to prevent its fall. It was determined that while the result of this accident should be expected to cause some type of injury, the worker’s pre-existing conditions greatly enhanced the result of that injury.

The Vice-Chair agreed that the worker had substantial pre-existing conditions. Although the accident should be considered moderate in nature (likely to cause injury), so too were the pre-existing conditions (without the pre-existing conditions the impact of the injuries would have been lessened). Our client received 50% SIEF.

The factors in determining SIEF:

• The severity of the accident (minor, moderate, major)
• The severity of the pre-existing condition (minor, moderate, major)
• Did the pre-existing conditions affect the onset of the injury?
• Did the pre-existing conditions prolong the recovery?

Are all critical to any cost relief appeal and must be considered in total when presenting your appeal.

A plumber twisted his knee while stepping backwards and landing in a tire rut. He did not fall but twisted his knee while trying to maintain his balance. He eventually required surgery and was granted a 30% Non-Economic Loss award as a result of his injuries.

SEGA applied for cost relief on this file on behalf of the plumber’s employer and was granted 25% SIEF. The Case Manager determined the worker had a MINOR pre-existing condition and the accident was MODERATE in severity. An MRI revealed the worker’s previous conditions to be prepateller bursitis and a medial meniscus tear.

The Appeals Resolution Officer agreed with this conclusion but did not honour our request to increase the degree of cost relief. They argued that as the plumber’s entire body weight was on his knee at the time of the twist, this should result in a disabling injury.

This file was appealed to the Tribunal on the grounds that both the pre-existing condition and accident had been misclassified at the lower levels.

The Vice-Chair reduced the severity of the accident from moderate to minor. It was a very small rut and a normal condition on any constructions site. Without the pre-existing condition it is highly unlikely anyone would suffer an injury.

The Vice-Chair, based upon the Surgeon’s report, agreed that the pre-existing conditions were in fact moderate.

As a result of our appeal the degree of cost relief was increased from 25% SIEF to 75%.

If your company is not appealing cost relief decision to WSIAT it is unlikely you have maximized the cost relief available.

A 42 year old construction worker was injured while breaking down the ceiling on balconies as a result of working with a jackhammer overhead. The accident occurred in 2008.

It was determined that he suffered from disc degeneration and the Appeals Resolution Office denied the application for Cost ¬-Relief as it was determined the pre-existing condition was “age related” and did not prolong the worker’s recovery from his workplace accident.

The Vice-Chair however granted cost relief based upon the medical evidence and the fact that the pre-existing conditions were the casual factors for the onset on the injury. The employer was awarded 75% SIEF.

As the decision to grant cost relief occurred after the claim was outside of the 5 year CAD-7 window AND the employer had shown diligence in seeking cost relief, the Vice-Chair ordered the WSIB to grant a retroactive adjustment to the company’s CAD-7 Experience Rating account.

What is of significance in this decision is that this is not the first time we have received a similar decision from the Tribunal. The WSIB recognizes the worker’s pre-existing conditions but denies the request for cost relief on the grounds that the conditions are age related.

Precedent shows that it is not relevant how the pre-existing were acquired; it only matters that you can show that they exist.

A 45 year old general construction labourer slipped and fell through the normal course of his duties. The worker suffered multiple injuries and his absence from work was prolonged as a he developed depression as a result of his continuing pain from his injuries. The worker received 2 Non-Economic loss awards due to his severe to moderate degenerative changes.

The employer’s request, as well as and SEGA’s appeal, for Cost Relief were denied as the WSIB argued the worker’s pre-existing condition was the expected outcome of for a 45 year old man in construction.

SEGA’s appeal was successful as we cited precedent from a prior WSIAT decision; it is the existence of the pre-existing condition that is determining factor in granting cost relief.

In his decision the Vice-Chair noted several other factors that played into his decision to grant our appeal 50% Cost Relief.

• The employer had shown diligence throughout the process in trying to return this worker to modified duties and for their attempts to gain cost relief
• The WSIB demonstrated “systemic delays in placing this worker into an appropriate treatment program”
• These delays contributed to the psychological condition of the worker and this further to contributed to prolonging his recovery

Lastly SEGA argued that employer should receive “REAL SIEF RELIEF and not RELIEF which is merely a matter of form” even though the WSIAT decision came after the CAD-7 cut off date. This was accepted by the Vice-Chair and resulted in a recalculation of their past CAD-7 costs.

There are two separate claims for the same employer under this appeal.

In the first claim the employer was successful in achieving 50% Cost Relief. They appeal that decision seeking a greater degree of Cost Relief. The Appeal Resolution Officer (ARO) reconsidered the initial cost relief and reduced the award to 25%

In the second claim the employer achieved 75% Cost Relief and upon appeal this award was reduced to 50%.

At the Tribunal SEGA appealed both decisions made by the respective ARO’s.

For claim 1 – SEGA was successful in returning 50% Cost Relief to the employer

For claim 2 – SEGA increased the total quantum of Cost Relief to 90%

In 2001 a construction employer paid a CAD-7 surcharge of $72,500. Later in 2001 they failed their second Workwell audit and paid a penalty of $76,500.

SEGA argued, noting several WSIB policies, that an employer cannot be charged a surcharge from separate programs in the same calendar year. It was determined that the maximum surcharge the company should have paid in 2001 was the Workwell levy of $76,500 as it was the higher of the two amounts. (The company should have paid the CAD-7 surcharge of $ 72,500 and a $ 4,000 Workwell levy).

The company was awarded, 11 years after the initial penalties, the difference between the levied surcharge and what they should have paid ($76,500 – $4,000). The remaining $ 72,000 was returned to the company.

A 56 year old carpenter felt a pain in his right knee standing up after he was hammering nails into a hardwood floor. He sought medical attention four days after the initial on set of pain.

While Cost Relief was denied at the operating level, 50% SIEF was granted by the ARO as they deemed the worker to have minor pre-existing condition. This decision was appealed to the Tribunal as we felt the extent of the pre-existing condition was far greater than minor.

The Tribunal agreed, based upon the presentation of the medical evidence, it was agreed the pre-existing conditions were major and cost relief was increased to 75%.

A carpenter for an aluminum siding contractor fell while working in a cube van. It was determined that this worker had two pre-existing conditions: an Acrimonious Hook in his shoulder and Osteoarthritis.

The medical advisor of the WSIB’s Cost Relief team acknowledged that the Injured Worker suffered from two pre-existing conditions but argued the these conditions did not contribute to either the extent of his injury or to his recovery time. In essence his argument was that these are injuries are consistent with the expected outcome from the fall. As a result no cost relief was awarded to this company.

The Vice-Chair agreed that this accident should be considered moderate (the injury was a likely outcome of the fall) however the Vice-Chair did recognize that the presence of these two pre-existing conditions contributed to prolonging the recovery time for this worker beyond normal expectations. The pre-existing conditions were deemed moderate; as a result 50% SIEF Cost Relief was awarded against all costs in this claim.

SEGA’s submission to the Tribunal included submissions that refuted this argument. We were successful in achieving 50% Cost Relief.

A personal support worker was injured while assisting a client in bathing. The patient slipped and grabbed the arm of his PSW. The worker felt the immediate onset of severe lower back pain. The accident occurred in December of 2009.

As a result of the injury the worker underwent an MRI scan in May 2010. The findings of the MRI included a mild degenerative change in the lower lumbar spine and right paracentral posterior disc herniation. Surgery was performed in February of 2011 to alleviate the pain.

The WSIB medical’s advisor denied the request for cost relief for this claim. He concluded the worker’s injury and pain were wholly consistent with the accident. The Vice-Chair disagreed, stating that he preferred the opinion supplied from our Independent Medical review of the case file. Specifically that the pre-existing condition weakened the affected disc and this injury would likely not have occurred if the accident had happened with any other worker who did not suffer from degenerative disc disease.

Prior to the hearing our client had 0% cost relief and was awarded 50% cost relief by the Vice-Chair.

It is vital to supply an Independent Medical opinion when a case is taken to the Tribunal. Often it is used to provide a contrary opinion to that of the WSIB. In many cases it may be the only medical information made available to the Vice-Chair.

A carpenter fell from a step ladder during the normal course of his duties. The claim was deemed moderate in nature, meaning that a lost time injury was the expected outcome of the accident. The worker was away from work for six months due to his injuries.

Cost Relief was denied at both the operating level and by the Appeals Resolution Officer. SEGA argued that these injuries, based upon WSIB policy, should have resulted in three months of lost time. The Vice Chair awarded 25% cost relief.

A personal support worker was injured while assisting a client in bathing. The patient slipped and grabbed the arm of his PSW. The worker felt the immediate onset of severe lower back pain. The accident occurred in December of 2009.

As a result of the injury the worker underwent an MRI scan in May 2010. The findings of the MRI included a mild degenerative change in the lower lumbar spine and right paracentral posterior disc herniation. Surgery was performed in February of 2011 to alleviate the pain.

The WSIB medical’s advisor denied the request for cost relief for this claim. He concluded the worker’s injury and pain were wholly consistent with the accident. The Vice-Chair disagreed, stating that he preferred the opinion supplied from our Independent Medical review of the case file. Specifically that the pre-existing condition weakened the affected disc and this injury would likely not have occurred if the accident had happened with any other worker who did not suffer from degenerative disc disease.

Prior to the hearing our client had 0% cost relief and was awarded 50% cost relief by the Vice-Chair.

It is vital to supply an Independent Medical opinion when a case is taken to the Tribunal. Often it is used to provide a contrary opinion to that of the WSIB. In many cases it may be the only medical information made available to the Vice-Chair.

A 24 year old apprentice carpenter injured his knee in what was deemed “horseplay”. The WSIB denied this claim as it was determined the worker had removed himself from the course of employment as a result of the horseplay incident.

The worker, represented by his union, appealed this decision to the Tribunal. SEGA presented several pieces of evidence at the hearing, including a decision from previous claim regarding horseplay. The Tribunal agreed with our arguments and the worker’s appeal was denied.

A personal support worker was injured while assisting a client in bathing. The patient slipped and grabbed the arm of his PSW. The worker felt the immediate onset of severe lower back pain. The accident occurred in December of 2009.

As a result of the injury the worker underwent an MRI scan in May 2010. The findings of the MRI included a mild degenerative change in the lower lumbar spine and right paracentral posterior disc herniation. Surgery was performed in February of 2011 to alleviate the pain.

The WSIB medical’s advisor denied the request for cost relief for this claim. He concluded the worker’s injury and pain were wholly consistent with the accident. The Vice-Chair disagreed, stating that he preferred the opinion supplied from our Independent Medical review of the case file. Specifically that the pre-existing condition weakened the affected disc and this injury would likely not have occurred if the accident had happened with any other worker who did not suffer from degenerative disc disease.

Prior to the hearing our client had 0% cost relief and was awarded 50% cost relief by the Vice-Chair.

It is vital to supply an Independent Medical opinion when a case is taken to the Tribunal. Often it is used to provide a contrary opinion to that of the WSIB. In many cases it may be the only medical information made available to the Vice-Chair.

A salesman for a construction company injured his knee in 1995 but missed no time as the result of injury. In 1998 the salesman was awarded a 10% NEL award as the injury resulted in a permanent impairment.

As a result of the NEL award the WSIB recalculated the 1996 and 1997 CAD-7 statements for above mentioned Construction Company and charged them an additional CAD-7 frequency.

By citing WSIB policy we were able to show that the Board was incorrect in this decision and the Tribunal removed the frequency.

A personal support worker was injured while assisting a client in bathing. The patient slipped and grabbed the arm of his PSW. The worker felt the immediate onset of severe lower back pain. The accident occurred in December of 2009.

As a result of the injury the worker underwent an MRI scan in May 2010. The findings of the MRI included a mild degenerative change in the lower lumbar spine and right paracentral posterior disc herniation. Surgery was performed in February of 2011 to alleviate the pain.

The WSIB medical’s advisor denied the request for cost relief for this claim. He concluded the worker’s injury and pain were wholly consistent with the accident. The Vice-Chair disagreed, stating that he preferred the opinion supplied from our Independent Medical review of the case file. Specifically that the pre-existing condition weakened the affected disc and this injury would likely not have occurred if the accident had happened with any other worker who did not suffer from degenerative disc disease.

Prior to the hearing our client had 0% cost relief and was awarded 50% cost relief by the Vice-Chair.

It is vital to supply an Independent Medical opinion when a case is taken to the Tribunal. Often it is used to provide a contrary opinion to that of the WSIB. In many cases it may be the only medical information made available to the Vice-Chair.

A carpenter fell from a step ladder during the normal course of his duties. The claim was deemed moderate in nature, meaning that a lost time injury was the expected outcome of the accident. The worker was away from work for six months due to his injuries.

Cost Relief was denied at both the operating level and by the Appeals Resolution Officer. SEGA argued that these injuries, based upon WSIB policy, should have resulted in three months of lost time. The Vice Chair awarded 25% cost relief.

There was no application for cost relief until the claim was late in the five year experience window for CAD-7. Cost Relief was granted but not applied as the decision was rendered after the claim had left the “window”. The cost relief was applied as our argument showed how WSIB policy was not used in this decision.