Are you finding it challenging to obtain SIEF cost relief on your claims? Have you had your requests rejected, even though you have presented clear medical evidence and referenced WSIB policy? According to Policy #14-05-02, SIEF or Secondary Injury Enhancement Fund is awarded when a "prior disability caused or contributed to the compensable accident" or the "period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition". Either of these situations combined with the severity of the incident will determine the level of SIEF awarded. It is important to note also, that SIEF does not affect the worker's benefits, but simply reduces the employer's WSIB costs associated with the workplace injury.
Recently we have started to become aware of a trend in decisions involving the allowance of SIEF cost relief to employers, specifically that it is becoming increasingly difficult to obtain. Quite often the process involves at least one or two stages of appeal, even when medical evidence has been presented.
A recent decision (Decision No. 2364/11) at the Workplace Safety and Insurance Appeals Tribunal (WSIAT), illustrates some typical challenges employers are facing when requesting SIEF.
Brief background of the case:
The employer appealed the Case Manager's decision to the ARO, and the request was subsequently denied again due to the fact that none of the medical reports, including the worker's family physician indicated there were any factors significantly delaying the worker's recovery. The general recovery guideline for this type of injury was 42 days, and while the ARO acknowledged that 77 days was longer than the "guideline", they were still in fact denying the application of SIEF due to the fact that this was only a "guideline", and individuals recover at different paces. In this case although there was medical evidence presented on the MRI and ultrasound of a pre-existing condition, no medical practitioner validated the findings.
The employer appealed the decision to the Tribunal level indicating in their written submission that the 42 day return to work guideline(Official Disability Guidelines) was in reference to a severe injury, whereas the worker's injury was mild to moderate suggesting that a return to modified duties after 42 days, let alone 77 was not normal. The Tribunal acknowledged that even though there was no medical opinion commenting on the results of the MRI which indicated the worker had "AC joint osteoarthritis" that was potentially interfering with the "normal movement of the supraspinatus", the fact remained that the worker injured her shoulder and did not recover as quickly as expected. It was determined that more than likely the osteoarthritis in the worker's right shoulder was a pre-existing condition that manifested after the injury and prolonged recovery. The employer was awarded 25% cost relief from the costs of this claim under the SIEF policy based on a moderate incident and minor preexisting.
What can we learn from this case?
More and more the medical on a file is becoming critical to the allowance of SIEF. Even more so is an opinion from the medical community to connect the delay in recovery to the fact that the preexisting condition exists in order to allow any SIEF. Employers need to continue to make these connections if they have any hope of obtaining any SIEF in future. Given that the current decisions we have been receiving are more and more often denials due to lack of a medical opinions directly indicating a connection between the preexisting and the delay in recovery, we are planning to take this to the top. If you have any decisions that you feel are unfair, join us! We are looking for SIEF decisions that don't make sense, where medical exists supports significant pre-existing, there are delays in recovery and the WSIB has denied SIEF cost relief. If you have one such decision, let us know, we want to bring together as many decisions as possible to present to WSIB to get an understanding of how they are making these decisions and in turn understand how we can get more approved!
Contact Anna Aceto-Guerin by email at firstname.lastname@example.org
Source Case: Decision No 2364/11
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