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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 3308 16
1/13/2017
E. Smith

  • Aggravation (preexisting condition)
  • Recurrences (compensable injury)
  • Second Injury and Enhancement Fund {SIEF} (preexisting condition)
  • Board Directives and Guidelines (aggravation) (preexisting condition)

The worker suffered a right knee injury in November 2011. He had previously suffered a right knee injury in 2007, when he had a torn meniscus. The employer appealed a decision of the Appeals Resolution Officer denying limitation of entitlement to an aggravation basis only and denying the employer SIEF relief.
The Vice-Chair distinguished between entitlement on an aggravation basis and a recurrence. Entitlement is granted on an aggravation basis on appropriate facts where there is a new accident. If there is no new accident, the deteriorated symptoms are properly recognized as a recurrence. The distinction is addressed in Board Operational Policy Manual, Document No. 11-01-15, on aggravation basis, and Document No. 15-03-01, on recurrences. Document No. 11-01-15 defines an aggravation as the effect that a work-related injury has on a pre-accident impairment requiring health care and/or leading to a loss of earning capacity. It provides that an injury is recognized as a recurrence when it is difficult to identify a specific incident or action that has increased the worker's impairment. A claim that is allowed on an aggravation basis should have a clearly defined new accident. Decision No. 15-03-01 defines a recurrence as involving either no new accident or an insignificant new accident.
The Vice-Chair stated that a deterioration in a worker's symptoms constitutes a recurrence when there is no new work-related causative factor or when the work-related factors are so minimal as not to constitute a significant contributing factor in the deterioration. If the work constitutes a significant contributing factor in the new worsened symptoms at the time of the deterioration, there has been a new accident.
If an injury is the result of a recurrence, all symptoms are attributed to the prior accident and all related benefits are paid under the prior claim.
In this case, the worker stepped down from a truck in November 2011, and rolled on his ankle. This injuring process was a significant contributing factor to the worsened knee symptoms. There was a new accident in November 2011.
In the 2007 accident, the worker suffered an injury to his meniscus. In the 2011 accident, the worker suffered an injury to different components of his knee, specifically a synovial impingement with perhaps a little medial plica.
The aggravation policy applies in cases where a worker has a pre-accident impairment and suffers a minor work-related injury or illness to the same body part or system. This raises the question of what is intended by the reference to the body part. The Vice-Chair interpreted the policy more broadly, so that the reference to body part should be consistent with the body areas in which ratings are established under the AMA Guides. Ratings under the AMA Guides are for broadly based body parts, such as the neck, the knee or the lumbar spine. An important aspect of the ratings is based on range of motion findings for these body areas. The ratings do not distinguish between range of motion effects arising from different components of each body area.
None the less, the question of the aggravation basis was moot to the costs charged to the employer, based on the facts of this case.
The employer appeared to be of the view that, if the 2011 claim is allowed on an aggravation basis, either the costs charged to the employer or the SIEF issue would be affected. However, the Vice-Chair found that was not the case.
The 2011 injury did not result in any permanent impairment. All of the costs incurred after the 2011 injury are properly attributed to the 2011 claim. The worker had been able to work without wage loss until the 2011 accident. There are no costs of the 2011 claim that could reasonably be attributed to the prior meniscal injury.
Regarding SIEF, there was no evidence of a pre-existing condition which caused or prolonged the temporary symptoms that resulted from the 2011 accident. In considering this aspect of the case, it was relevant that the components of the knee damaged in 2011 were different from the component damaged in 2007. The employer was not entitled to SIEF relief.
The appeal was dismissed.