- Preexisting condition (diabetes)
- Second Injury and Enhancement Fund {SIEF} (severity of preexisting condition)
- Preexisting condition (smoking)
The Board allowed entitlement to benefits for the worker's right shoulder strain and low back strain. The issue to be determined in this appeal was whether the employer was entitled to SIEF cost relief in respect of the costs of this worker's claim and, if so, the quantum of such relief.
The appeal was allowed. Based on a minor accident and a minor pre-existing condition (diabetes), the employer was entitled to 50% SIEF cost relief.The employer submitted that the worker's disability was prolonged and/or enhanced because (i) the worker was a smoker and (ii) the worker was diabetic. The Vice-Chair noted that the preponderance of Tribunal decisions have concluded that smoking is a habit, not a condition as required by the SIEF policy (see Decision No. 464/09). Moreover, a number of cases have noted that the fact that smoking is a "risk factor" for certain particular outcomes is also not sufficient for it to be captured as a condition for SIEF purposes (see Decision No. 464/09). However, diabetes, unlike smoking, is a medical condition that is identifiable and measurable in itself. Tribunal cases have generally accepted that diabetes is a pre-existing condition for the purpose of SIEF relief (see Decision No. 1298/21). There was also evidence of an actual impact of this condition on the severity of the disability (by way of the effect on post-surgical healing and the inability of the worker to undergo revision surgery).It was stated that "condition" in the SIEF policy refers to an identifiable medical condition; it does not include personal characteristics, habits or lifestyle choices. The Vice-Chair noted that individuals vary enormously in their physical makeup, genetics, lifestyle, fitness, and other personal characteristics, which may potentially affect a worker's susceptibility to injury. It was seen as unlikely that the policy drafters intended that Board decision-makers examine each case in order to evaluate all the personal characteristics, habits and lifestyle of each individual injured worker that may have made them more or less susceptible to suffering a disability that is more prolonged or enhanced than another worker with different personal characteristics and habits. Such a policy intent was considered unfeasible. In the Vice-Chair's view, a medical condition, for the purposes of the SIEF policy, is also not the same as a mere "risk factor." When doctors or scientists use the term "risk factor," it can refer to a broad array of characteristics. These may include a person's physical characteristics, gender, genetics, lifestyle choices, level of physical fitness, diet, and many other factors. Risk factors may also include medical conditions, but a risk factor itself is not necessarily a medical condition as the policy intended. In addition, in cases where a risk factor is properly considered a medical condition for the purposes of the policy, there must still be medical evidence showing that the risk materialized in the particular case at issue. In this case, the medical evidence provided little guidance regarding the relative impact of the two factors, so factoring out the effect of smoking was not a mathematical or easily quantifiable calculation. The Vice-Chair ultimately concluded that diabetes should be considered a minor pre-existing condition.