- Preexisting condition (pregnancy)
- Second Injury and Enhancement Fund {SIEF} (preexisting condition)
- Second Injury and Enhancement Fund {SIEF} (pre-existing disability) (causation)
The employer's entitlement to SIEF relief was the sole issue before the Tribunal. The worker had slipped on water, and although she did not fall, her right leg extended backwards resulting in a low back and groin strain. The worker was 31 weeks pregnant at the time of the accident.
The employer's appeal was denied.The Vice-Chair found that the worker's low back strain/sprain injury did not meet the definition of a pre-existing condition in this case. In addition, the worker's pregnancy was not an asymptomatic or underlying condition that only became manifest post-accident (see Decision No. 2994/17). Thus, pregnancy did not constitute a pre-existing condition within the meaning of Board policy. There was no evidence of any disabilities arising from the worker's pregnancy. The medical documentation indicated that the worker was performing her regular duties and hours prior to the compensable accident. The worker was experiencing a normal and healthy pregnancy. Further to Decision No. 2994/17, the worker's pregnancy did not constitute a pre-existing disability at the time of the compensable accident. Impairment is defined as any "physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss." Rather, pregnancy is natural and cannot be considered either a functional abnormality or loss or a physical abnormality or loss within the meaning of the definition set out in subsection 2(1). Correspondingly, the Vice-Chair noted that pregnancy does not meet the definition of disability under the Ontario Human Rights Code. Discrimination based on pregnancy is attributed to gender (see section 10(2) of the OHRC). The Vice-Chair acknowledged that the SIEF is not designed to capture every condition or circumstance outside the employer's control in administering entitlement to cost relief. For example, delays in accessing treatment, as was the case here, and global pandemics, are outside the parameters of the policy. The Vice-Chair noted that relief is provided in relation to the claim costs for post-accident changes in circumstances under OPM Document No. 15-06-08. Therefore, there are other mechanisms available to reduce claim costs when there are non-compensable situations impacting the claim, and cost relief under the SIEF would not be the only vehicle for employers to minimize claim costs.