The Weighty Impact of Obesity on Workers’ Compensation Claims Costs

  • October 22, 2021
  • Cassandra Ma, Canada Post Corporation

Obesity diminishes almost every aspect of health and increases the risk of serious health complications, such as diabetes, cardiovascular disease, joint and bone inflammation, musculoskeletal disorders, and respiratory decline.

It is no surprise, then, that obesity similarly exacerbates adverse health outcomes when it is co-morbid with a work-related injury. Research has shown that injured workers who suffer from obesity are at a higher risk of experiencing a delayed return to work and developing permanent disability. As a result, the loss of earnings — and, in turn, the workers’ compensation claims costs — arising from a work-related injury will likely be elevated where a diagnosis of obesity is also present.

With this medical context in mind, some workers’ compensation practitioners have increasingly employed the strategy of characterizing obesity as a pre-existing condition for the purposes of claiming cost relief from the Second Injury and Enhancement Fund (“SIEF”). However, recent decisions of the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) demonstrate that this argument will not be easily won. To the contrary, these decisions suggest that obesity will be grounds for SIEF cost relief only where treating physicians have expressly linked a worker’s obesity to the worker’s work-related injury or its treatment.

General Principles Regarding SIEF Cost Relief

As stated in Policy Document #14-05-03 (the “SIEF Policy”), the Workplace Safety and Insurance Board (the “WSIB”) may grant SIEF cost relief to an accident employer where, inter alia, a pre-existing condition prolongs or enhances a worker’s compensable injury.

If this precondition is satisfied, an employer’s entitlement to SIEF cost relief will be determined by the medical significance of the pre-existing condition and the severity of the compensable accident, as set out in the following chart from the SIEF Policy:

SIEF – application to employer costs

Medical Significance of Pre-Existing Condition

Severity of Accident

Percentage of Cost Transfer

Minor

Minor

50%

Moderate

25%

Major

0%

Moderate

Minor

75%

Moderate

50%

Major

25%

Major

Minor

90-100%

Moderate

75%

Major

50%

 

For the purposes of SIEF, a pre-existing condition is defined as “an underlying or asymptomatic condition which only becomes manifest post-accident” (SIEF Policy, p. 1).

Obesity as a Basis for Granting SIEF Cost Relief

The WSIAT in Decision No. 268/01, 2001 ONWSIAT 3916, confirmed that obesity can be a pre-existing condition for the purposes of the SIEF Policy as long as the relevant medical evidence suggests that a worker’s obesity prolonged or enhanced the compensable illness or injury.

Even so, Decision No. 268/01 and analogous cases released thereafter have consistently asserted that there is no particular BMI benchmark at which obesity will automatically be considered a factor in disability. Rather, as is typical in workers’ compensation law, each case must be considered on its own evidence and merits. Based on a survey of cases involving obesity-related requests for SIEF cost relief, employer-side practitioners will need to proffer evidence of an explicit medical link between a worker’s obesity and any obstacles or delays in the worker’s recovery from the compensable condition:

  1. Decision No. 508/12, 2012 ONWSIAT 757: The worker received entitlement for low back pain that he developed from job-related lifting tasks. The employer representative requested SIEF cost relief on the basis of, inter alia, the worker’s pre-existing obesity (a BMI of 34.4). However, the only medical evidence linking the worker’s obesity to his ongoing back problems was a general comment that “obesity is known to contribute to injury and increased low back pain.” Without specific evidence that the worker’s obesity affected his employment or activities of daily living, the WSIAT refused to conclude that the worker’s obesity could be the basis for SIEF cost relief.
  2. Decision No. 2042/12, 2013 ONWSIAT 1441: The worker sustained various injuries while operating a work vehicle. The WSIAT found that the worker’s obesity (a BMI of approximately 53) constituted a pre-existing condition of major medical significance, as it made the worker more liable to develop a disability of greater severity. Notably, the WSIB had funded gastric by-pass surgery on the basis that the worker’s recovery would be delayed, impeded, or prevented without this treatment. The employer was ultimately awarded 50% SIEF cost relief.
  3. Decision No. 229/14, 2014 ONWSIAT 302: The worker received initial entitlement for bilateral forearm, wrists, and hands after developing work-related repetitive strain injuries. The WSIAT found that the worker’s obesity (a BMI of approximately 37), by itself, was a minor pre-existing condition, as the medical evidence described obesity as a systemic factor that could contribute to carpal tunnel syndrome. However, the medical significance of the worker’s obesity was enhanced when viewed in combination with the worker’s alcoholism and osteoarthritis. The employer received 75% SIEF cost relief.
  4. Decision No. 3166/18, 2018 ONWSIAT 3836: The worker was granted entitlement to partial meniscal tears in his bilateral knees as a result of a slip and fall. The worker weighed more than 360 pounds, and his size made it impossible for him to fit into an MRI machine to undergo necessary diagnostic tests. Because the worker’s obesity prevented his treatment and recovery, as well as increased his risk of developing bilateral knee disability, it was considered a pre-existing condition of major significance. The WSIAT granted 90% SIEF cost relief to the employer.
  5. Decision No. 623/19, 2019 ONWSIAT 1233: The worker injured her left knee after stumbling on uneven ground. There was insufficient evidence of a nexus between the worker’s obesity (a BMI of 38.3) and her recovery period, as the medical record did not identify any pre-existing conditions that would impact the worker’s recovery. Nevertheless, the WSIAT accepted that the worker’s obesity made her more susceptible to a severe knee injury, as it enhanced the effect of her low-velocity accident. The employer was awarded 75% SIEF cost relief.
  6. Decision No. 815/21, 2021 ONWSIAT 869: The worker injured her left ankle after slipping on a wet floor in the workplace. At the time of the accident, the worker weighed 140 kg, or approximately 308 pounds. The employer’s representative applied for SIEF cost relief and submitted a independent review report stating that the worker’s severe injury was associated with a high-velocity incident, which would be uncommon in a slip-and-fall by a person of normal weight. The report also opined that the worker’s obesity put her at greater risk for developing ankle fractures and post-injury pulmonary embolism. However, the WSIAT noted that there was no mention in the contemporaneous medical record of the worker having undergone treatment or missing work due to her obesity, nor of any causal link between the worker’s obesity and her ongoing condition. For this reason, the WSIAT found that the worker’s obesity was not a basis for awarding SIEF cost relief.
  7. Decision No. 473/21, 2021 ONWSIAT 1202: The worker tripped over a cord and fell onto the floor, landing forcefully on her left shoulder. The WSIAT found that the worker’s obesity (a BMI of 42) played a moderate role in enhancing the period of disability resulting for the work-related accident. This finding was based on a medical opinion in the claim file, which stated that the worker’s obesity would predispose her to rotator cuff tendinopathy and tearing. The employer was awarded 50% SIEF cost relief.

Targeting Obesity as a Strategy to Reduce Claims Costs

In summary, arguing obesity as a pre-existing condition can be a strategy for reducing claims costs. However, as the case law shows, this argument requires specific evidentiary backing. The general association between obesity and adverse health outcomes, without more, is unlikely to establish entitlement to SIEF cost relief. Instead, employer-side practitioners will need to scrutinize the WSIB claim file for explicit and, ideally, contemporaneous evidence of obesity-related symptomology and associated effects on the worker’s recovery.

Perhaps a better strategy for reducing an employer’s claims costs is to target obesity itself. As mentioned at the outset of this article, it is well known that obesity significantly hastens bodily degeneration, increases risk of injury, exacerbates injury/illness complications, and impairs overall health. With this in mind, employers may wish to invest in workplace wellness initiatives to encourage workers to adopt healthy lifestyles that include regular exercise and balanced diets. By fostering healthy lifestyle habits among their workforces, employers can proactively minimize or eliminate all of these issues and improve workplace well-being before accidents even occur.

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About the Author

Cassandra Ma is legal counsel for Canada Post Corporation and the 2021-2022 Chair of the OBA’s Workers’ Compensation Section. Prior to joining Canada Post, Cassandra practiced labour and employment law with a leading management-side firm in Toronto. She specializes in the areas of collective agreement interpretation, grievance arbitration, disability management, human rights, and workers’ compensation law.

Cassandra would like to thank Andrew Failes of Filion Wakely Thorup Angeletti LLP for his contributions to this article.

 

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