- Preexisting condition (disc, degeneration) (lumbar)
- Preexisting condition (obesity)
- Second Injury and Enhancement Fund {SIEF} (preexisting condition) (ageing)
- Second Injury and Enhancement Fund {SIEF} (prolonged recovery)
The employer sought an increase in the level of the Second Injury and Enhancement Fund (SIEF) relief it had been awarded from 50% to 75 or 90%. The worker sought to have the employer's entitlement to SIEF rescinded.
The employer's appeal was denied and the worker's appeal was allowed. The worker had pre-existing degenerative changes in her lumbar spine. The worker's weight at the time of her accident also placed her in a category that was labeled "obese" on the Body Mass Index (BMI) scale. The Vice-Chair accepted that these conditions may have had some effect on the worker's recovery from injury; however, these conditions were normal within the meaning of the applicable policy. They were not unusual or abnormal, and therefore, they did not qualify the employer for SIEF relief.The Vice-Chair noted that obesity does not fall within the definition of either a pre-accident disability or a pre-existing condition as those terms are defined in OPM Document No. 14-05-03. However, there is an accepted practice at the WSIB and the Tribunal of accepting obesity as a pre-existing condition. The Vice-Chair accepted that recognition of obesity as a qualifying pre-existing condition under the SIEF policy was consistent with the recognition of other prior conditions that have not previously interfered with a worker's ability to work, but which may contribute to the occurrence or severity of an accident. Therefore, obesity may constitute a pre-accident condition that may qualify employers for SIEF relief, as long as there is reliable evidence in support. The Vice-Chair noted, however, it is appropriate for the Appeals Tribunal to consider the purpose of the policy when interpreting its specific provisions, and also keep in mind the consequences that would flow from providing the policy with a much broader application than what was intended by the WSIB. In the case of the availability of SIEF relief for obesity, the Vice-Chair stated that it would be appropriate to draw a distinction between those workers whose weight places them in the obese category, and workers whose weight places them in the morbidly obese category. In the present appeal, the weight of the worker at the time of her accident was greater than ideal; however, the worker's weight was within the range of normal. Therefore, as it was found that the worker's weight did not make the worker liable to develop a disability of greater severity than a normal person as per SIEF policy, the employer did not qualify for SIEF relief