WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1929/07

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1929/07 BEFORE: J. B. Lang : Vice-Chair B. M. Young : Member Representative of Employers J. A. Crocker : Member Representative of Workers HEARING: August 23, 2007 at Thunder Bay Oral DATE OF DECISION: December 19, 2007 NEUTRAL CITATION: 2007 ONWSIAT 3302 DECISION(S) UNDER APPEAL: WSIB ARO decision dated February 8, 2006 APPEARANCES: For the worker: For the employer: Ms. Emmanuelle Lopez-Tambasco, Union Representative Did Not Participate Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1929/07 REASONS (i) Introduction [1] The worker appeals the decision of S. McKinnon, an Appeals Resolution Officer (ARO) dated February 8, In that decision the ARO denied the worker s claim for initial entitlement for an injury to her neck and left shoulder which the worker asserts occurred at work on September 24, (ii) Background [2] The worker, who was 58 years of age at the time of the hearing, was employed as a cashier at a grocery store. She began her employment with the accident employer on November 13, Although her main job duties were that of a cashier, cashiers were also required to stock shelves and perform other duties when they were not needed at the check out counter. [3] In May 2002, the worker had suffered a previous injury to her shoulder. She experienced a sharp pain in her back and under her shoulder blades while lifting boxes of salad in the produce department. The diagnosis of this injury was calcivic tendonitis. This injury was reported to the Board but entitlement was denied on the grounds that the worker had not established that a workplace accident had occurred. [4] On September 24, 2004, the worker claims that she injured her left shoulder and neck while she was retrieving shopping carts from the parking lot of the grocery store. In analyzing this claim as a disablement, the Appeals Resolution Officer denied entitlement on the grounds that the evidence did not establish that the injury to the worker s neck and shoulder occurred in the course of her employment and arose out of her employment activities. (iii) The Issue [5] The issue in this appeal is one of initial entitlement whether the worker is entitled to benefits for the injury sustained to her neck and shoulder on September 24, (iv) Law and Policy [6] The date of accident in this appeal is September 24, 2004; consequently the Workplace Safety and Insurance Act, 1997 applies to this appeal. Pursuant to s. 126 of this Act, the Board has identified Policy Package #1 (Revision #7) Initial Entitlement and Policy Package #300 (Revision #7) Decision Making/Benefit of Doubt/Merits and Justice as being applicable to the subject matter of this appeal. (v) Review of Worker s Testimony and Evidence [7] The worker testified that she injured her left shoulder and neck on Friday, September 24, 2004 while she was retrieving shopping carts from the parking lot of the grocery store where she worked. Ordinarily, this job was performed by the shipper/receiver but on that date she was paged and asked to do the job. She retrieved about 25 carts which she moved into the store two or three at a time. The injury occurred when she had to exert herself pushing the carts some of which had damaged wheels over a metal threshold at the entrance of the store.

3 Page: 2 Decision No. 1929/07 [8] The worker testified that she mentioned that she had hurt herself to the head cashier and to a co-worker. She completed her 4 hour shift although her shoulder and neck were painful when she attempted to stock shelves. She concentrated on cashier duties for the remainder of her shift. This testimony is supported by a letter in the Case Record written by E.M a co-worker and dated June 29, E.M. stated that she observed that the worker was obviously in pain and that she complained of a terrible pain in her shoulder area after she had completed her assignment of retrieving shopping carts from the parking lot. [9] During the weekend following this incident, the worker took non prescription pain medication to relieve her symptoms. She was scheduled to work on Monday, September 27, 2004 but was absent in order to attend a funeral. She returned to work on Tuesday, September 28, 2004 and completed her 4 hour shift but found that her shoulder and neck were very painful. [10] The worker attended at a Walk In medical clinic on September 29, 2004 where she was examined by Dr. M. Mymko. His report indicates that the worker had stated that her left shoulder was gradually getting worse over the past few weeks. In the Form 8 completed for the Board, Dr. Mymko diagnosed tendonitis in the left shoulder and prescribed pain medication; but in his clinical notes he also diagnosed cervical spondylosis which is defined as degenerative joint disease affecting the cervical vertebrae. He recommended that the worker remain off work for a couple of weeks. In her testimony, the worker stated that Dr. Mymko had told her that she had suffered a pinched nerve. [11] The worker testified that when she reported this information to her employer she was informed that she could apply for either WSIB benefits or sickness benefits but not both. She opted for sickness benefits under EI because she needed the money and she thought she would receive EI benefits sooner. [12] Dr. D. Nelson, who had recently taken over the practice of the worker s previous family physician, first examined the worker on October 27, The worker testified that the pain was so bad at this time that she had difficulty doing her housework. In his examination, Dr. Nelson noted that the worker had significant pain over the supraspinatus muscles and trapezius muscles. He ordered an MRI scan and also prescribed physiotherapy. He also suggested that the worker should attempt a return to work with restrictions on heavy lifting. The worker resumed her job duties for three weeks during November 2004 but no light duty jobs were available and the worker found that she was not able to do the heavy work of stocking shelves. [13] The MRI scan of the worker s shoulder, taken on November 29, 2004 revealed hypersensitivity of the supraspinatus muscle which indicated tendonopathy. The scan also revealed a spur on the under surface of the acromium and a narrowing of the acromium space but there was no evidence of nerve impingement. The MRI of the worker s cervical spine, taken on December 6, 2004, did not reveal a disc herniation or other abnormalities. [14] Dr. Nelson examined the worker again on December 7, He noted that the eight physiotherapy sessions, which the worker had attended, had not produced any improvement. On examination, he reported a decrease in the range of motion in the worker s cervical spine and most particularly of the left shoulder.

4 Page: 3 Decision No. 1929/07 [15] The worker visited Dr. Nelson for a third time on January 26, 2005 at which time she was under considerable distress because there had been no improvement in her condition. Dr. Nelson arranged for an urgent consultation with Dr. Tracey Wilson, an orthopaedic surgeon. At this point, the worker became convinced that her injury was more serious than a pinched nerve and that it had originated with moving the shopping carts on September 24, She returned to her employer and insisted that a claim be filed with the Board. The employer submitted a Form 7 Report to the Board on January 26, [16] Dr. Wilson examined the worker on February 10, 2005 and reported restricted range of motion of both the cervical spine and the left shoulder. She diagnosed a rotator cuff tendonopathy with articular tearing. Dr. Wilson performed a subacromial steroid injection in the worker s left shoulder and prescribed further physiotherapy. She also recommended that should the worker return to work, she should not engage in any overhead or repetitive tasks. Dr. Wilson agreed to re-examine the worker in eight weeks and to evaluate at that time whether to proceed with surgical treatment of the worker s shoulder. [17] Dr. Nelson examined the worker on March 18, He noted that the steroid injection had relieved the pain somewhat but that the worker s range of motion was still inhibited. He also noted that the worker was discharged from physiotherapy because her condition had plateaued but the worker continued to perform an exercise regime at home. [18] The Case Record indicates that on June 8, 2005, the worker underwent surgery to repair the injury to her shoulder. Unfortunately, a copy of the operative report is not in the Case Record. However, there is a note from Dr. Nelson, dated December 15, 2005 indicating that the worker was fit to return to work with restrictions against heavy lifting, pushing and pulling and overhead work. There is another note, also dated December 15, 2005, in which the worker requests a leave of absence from the employer because of an illness of a family member. The Panel heard testimony that during the period of the events in this appeal, the accident employer was experiencing serious financial difficulties and the employer ceased operations in the spring of 2006 before the worker returned to work. (vi) Findings and Conclusions [19] For the reasons that follow, the Panel has decided to allow the worker s appeal. [20] The Claims Adjudicator and the Appeals Resolution Officer denied initial entitlement primarily on the grounds that the worker was unable to identify a specific incident that resulted in her symptoms, thus the worker s claim would fall into the category of a disablement. They also focussed on the fact that the worker had waited four months before filing a WSIB claim and that Dr. Mymko, in his initial report to the Board, stated that the pain in the worker s left shoulder was gradually getting worse over the past few weeks. They therefore concluded that the evidence did not establish that the worker s neck and shoulder problems began in the course of her employment activities nor did they arise out of her employment activities. [21] After considering all of the evidence, the Panel is satisfied that there was a specific incident on September 24, 2004 which contributed in a significant manner to the worker s injury. That incident was the pushing of the shopping carts into the store. The Panel accepts the testimony of the worker in describing this event and its consequences. The Panel notes that the

5 Page: 4 Decision No. 1929/07 ARO had found that the worker gave her testimony in a straightforward manner, and the Panel had a similar response to the testimony that it heard. The Panel also finds that the letter of E.M. supports the testimony provided by the worker. E.M. was working with the injured worker when she was paged to retrieve the shopping carts and she observed the worker immediately after she finished this task. The evidence provided by these two workers is sufficient, in the view of the Panel, to establish that an accident occurred to the worker on September 24, [22] Having accepted this evidence, the Panel finds that the worker has established the three immediates of place, time and activity which are described in the Board s Operational Policy Manual (OPM) Document Accident in the Course of Employment. The accident occurred at the workplace, during the hours that the worker was employed and while the worker was engaged in a work-related activity. Consequently, the Panel finds that the accident was work-related. [23] The Panel also finds that the medical evidence clearly establishes that the worker was injured as a result of this accident. The worker sought medical attention at a walk in clinic following a weekend of self medication and treatment. Indeed, there was some confusion about the diagnosis of the worker s injury but, after an MRI scan was performed, Dr. Wilson diagnosed rotator cuff tendonopathy with articular surface tearing. Dr. Wilson performed surgery to repair this injury on June 8, After reviewing all the evidence, the Panel finds, on the balance of probabilities, that the worker s rotator cuff tendonopathy with articular tearing was caused by the accident of September 24, [24] The Panel is also of the view that the worker had provided a reasonable explanation for her delay in reporting the accident to the Board. The worker testified that she was given an option by an inexperienced secretary for the employer of applying either for WSIB benefits or sickness benefits under Employment Insurance. The Panel finds that it is not implausible that an inexperienced person might give such advice. The Panel also notes that when she opted for EI benefits, (which she felt would provide her with replacement income more quickly) the worker had been advised that she had suffered a pinched nerve. It was not until the worker received the results of the MRI scan of her shoulder which revealed mild rotator cuff tendonopathy with articular surface tearing that she knew she had suffered a more serious injury. It was at that point that she insisted on filing a WSIB claim. [25] For all of the above reasons, the Panel grants the worker initial entitlement for the injury to her left shoulder which occurred in the accident of September 24, The matter is referred back to the Board for a determination of the extent of these benefits.

6 Page: 5 Decision No. 1929/07 DISPOSITION [26] The appeal is allowed. The Panel grants the worker initial entitlement for the injury to her left shoulder which occurred in the accident of September 24, 2004 including the surgery of June 8, 2005 and any other benefits that the Board may consider appropriate. The matter is referred back to the Board for a determination of these benefits. DATED: December 19, 2007 SIGNED: J. B. Lang, B. M. Young, J. A. Crocker