. WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 181/07

Transcription

1 . WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 181/07 BEFORE: S. J. Sutherland : Vice-Chair HEARING: January 22, 2007 at St. Catharines Oral DATE OF DECISION: January 25, 2007 NEUTRAL CITATION: 2007 ONWSIAT 199 DECISION(S) UNDER APPEAL: Appeals Resolution officer, B. Romano, dated August 29, 2003 APPEARANCES: For the worker: For the employer: Interpreter: F. Sampson, a Consultant R. Whittaker an associate of Mr. Sampson's observed the proceedings L. Kosmidis, a lawyer The employer's health services manager was present as a resource person for Ms Kosmidis N/A 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. 181/07 REASONS (i) Introduction [1] The worker appealed from the decision dated August 29, 2003, made by the Appeals Resolution Officer, B. Romano. In that decision, the Appeals Resolution Officer denied the worker initial entitlement to benefits for neck and shoulder injuries that either resulted from her job duties or were an aggravation of a pre-existing condition caused by her job duties. [2] The worker is seeking a finding that her neck and shoulder injuries either resulted from her job duties or were aggravated by those duties and all the benefits that would flow from that decision. (ii) Background [3] The employer is a casino operated by the Ontario Government. [4] The worker was 48 years old when I heard her appeal. She began working as a dealer in a charity casino in She started working for the accident employer on March 2, She advised the Claims Adjudicator, on April 18, 2002, that her job duties and hours were the same. She was a blackjack dealer when she sustained the injuries from which this appeal arises. [5] The worker developed pain in her neck and right shoulder and stopped working on May 15, She applied for, and received, short-term disability benefits from the employer's insurer. Dr. A. Sasson, a family physician, diagnosed a repetitive strain injury. The worker returned to work on December 6, 2001 and stopped working again on December 8, She returned to work on full duties, on January 31, [6] On February 4, 2002, the worker provided the employer with a doctor's note that said she should avoid dealing blackjack and that her injury was likely work-related. The employer stated that dealing blackjack was an essential part of the worker's job and left her on the blackjack table. [7] On March 11, 2002, the worker attended the employer's medical centre and reported pain in her right shoulder and neck, which she attributed to dealing blackjack. [8] The employer submitted a Report of Injury to the Board on March 12, The employer took the position that there was no relationship between the worker's neck and shoulder pain and her job duties. The employer stated that each dealer dealt cards for 60 minutes and then had a 20- minute break. In addition, the employer had conducted ergonomic studies which showed "that the presence of micro-breaks has a significant impact on reducing the likelihood of a repetitive strain injury developing." Finally, the employer provided a Physical Demands Analysis. The employer reviewed the risk factors associated with developing a repetitive strain injury and concluded that those factors were not present in a dealer's job. [9] The Claims Adjudicator denied the worker's claim on April 18, In doing so, the Claims Adjudicator considered the current medical findings, the worker's pre-existing condition, the job description and the ergonomic assessment. [10] The Appeals Resolution Officer upheld the Claims Adjudicator's decision.

3 Page: 2 Decision No. 181/07 [11] The worker appealed to the Tribunal. (iii) The worker's testimony [12] The worker testified that she was working as a blackjack dealer, in the casino, when she was injured on May 15, As she recalled, she felt a sharp pain in her shoulder when she was dealing cards. She never felt pain like that before. She stopped working and called her supervisor. She told the supervisor that she had shoulder pain and asked to go to the medical centre. She saw a nurse at the medical centre and told her that she developed a sharp pain in her shoulder when she was dealing cards. The nurse gave her Ibuprofen. She was sent back to the table 15 or 20 minutes later. She continued dealing, very slowly, until she could not do so any longer. She stopped working about midnight. [13] The worker stated that she is right-handed. She was dealing with her right hand and the pain was in her right shoulder. [14] The worker was unaware that she had a tear in the rotator cuff in her right shoulder. She remembered having an MRI but could not recall what the doctor told her after that investigation. She said that there is a lot of pain in the shoulder. She cannot move it nor do anything with it. [15] It was the worker's evidence that she was forced to return to work. Her doctor said she could not deal blackjack and recommended accommodation but the employer did not provide any. She returned to work between June and January She was dealing blackjack. She attended a pain management clinic and had nerve block injections when she was working. She continued to attend the pain management clinic until about two months before the hearing. [16] The worker said that she was not working at the time of the hearing. [17] Ms Kosmidis reviewed the movements involved in dealing blackjack with the worker. The worker agreed that she stood in front of a semicircular table. There were seven players around the table. There was no assigned seating and players could sit anywhere on the semicircle. There were players in front of her, on her left, and on her right. The shoe was on the worker's left. The worker used her left hand to pull cards from the shoe. She transferred the cards to her right hand to give to the players. She gave each player two cards and she gave herself two cards. She used her right hand to point to each player in turn and waited until each player said whether they wanted more cards. She took chips and cards from the players. If a player proffered money, she took it, put it in a slot, and gave the player chips. Some players came with chips from another table. She manually shuffled cards. She thought there were eight decks but could not remember. [18] In response to questions from Ms Kosmidis, the worker said: she started working for the accident employer part-time in March 2000; she began full-time employment in July 2000; she got her poker license in February 2001; and

4 Page: 3 Decision No. 181/07 none of her doctors ever went to the casino to see her job duties. She told the doctors about her work and that dealing caused her problems. [19] Ms Kosmidis directed to the worker's attention to a work schedule that was contained in the materials. That schedule showed that the worker spent most of her time dealing poker, not blackjack. The worker said that most of the time the schedule was meaningless. She reported to the pit manager when she began working and the pit manager could send her anywhere. Therefore, she could deal blackjack, poker, or she could be sent to another pit before relief. [20] Ms Kosmidis commented that the schedule showed the worker working in "poker only pits." The worker confirmed that only poker was played in those pits. She went on to say that the pit manager could send her to a different pit and she could be dealing blackjack or even taking chips from the roulette table. [21] The worker advised me that poker was not as difficult to deal as blackjack. There were fewer hands in poker and the players took more time to think about what they wanted to do with their hands. Therefore, it was more relaxing. (iv) The medical evidence [22] The medical evidence in this case is sparse. [23] The worker had a CT scan of her cervical spine on August 3, That scan showed: "osteoarthritic changes of the spine with there being narrowing of the neural foramina on the left at C5-C6." [24] Dr. V. Hajek, a consultant in physical medicine and rehabilitation, examined the worker on August 12, Dr. Hajek reviewed the CT scan report and said that the worker also had degenerative changes and disc space narrowing at C6-C7. Dr. Hajek recorded that the worker told her that she had an acute onset of pain at work on May 20, The pain spread to her right arm and got worse within hours. The worker went to a local hospital where Oxycocet 1 was prescribed. The pain had improved by about 20% between then and the worker's visit to Dr. Hajek. The worker had pain and stiffness in her neck. The pain spread to her right scapular area and to the paravertebral region at about T4-T5. Her right arm was weak. On examination, Dr. Hajek found a decreased range of motion in the worker's neck because of stiffness and pain. The worker had a full range of motion in her shoulders. The worker had a trigger finger "in the right palm in the fourth finger." Dr. Hajek diagnosed right cervical radiculopathy and tenosynovitis in the worker's right palm. She prescribed Amitriptyline 2 to help the worker sleep. She ordered an EMG and nerve conduction studies. She recommended gentle traction of the worker's cervical spine and the application of deep heat over her upper trapezi. 1 Oxycocet is a narcotic analgesic with acetaminophen. 2 Amitriptyline is also known as Elavil. It is a tricyclic antidepressant and is sometimes used to alleviate the anxiety component of depression.

5 Page: 4 Decision No. 181/07 [25] The nerve conduction studies EMG took place on September 15, The EMG report was within normal limits. The physician who performed the study, Dr. M. Del Campo, opined that the worker had fibromyositic 3 discomfort and epicondylitis. [26] Dr. A. Velji, the employer's physician, reported on December 4, 2001, that the worker claimed she was "not capable of doing anything at all" because of her neck and right shoulder problems. Dr. Velji thought that the worker was "suffering from muscular strain and possibly tendinitis at the elbow." He felt that the worker was capable of performing modified job duties. Dr. Velji stated that the worker could return to work on December 5, She was to do no repetitive twisting, no lifting or carrying more than five pounds, no pushing or pulling more than five pounds, and no reaching or lifting above-shoulder level with her right arm. Dr. Velji estimated that the restrictions would be in place for about four weeks, after which the worker's condition should be reassessed. [27] Dr. Sasson wrote to the employer's insurer on December 18, He said: - Above patient is suffering from neck and right shoulder pains which are likely job related as the signs and symptoms are that of a repetitive strain injury. - Has not responded to therapy, analgesics, or NSAID. - Patient has been referred to a pain clinic. - Despite my suggestion, [emphasis in the original] patient is requesting to return to work, due to financial difficulty, as she was told that her insurance coverage has been declined. [28] On February 2, 2002, Dr. Sasson wrote: - Above patient suffers from neck and right shoulder pain as a result of repetitive strain injury which is likely job-related. - It is imperative that while dealing she takes frequent rest or avoid constant dealing. - Accordingly, dealing blackjack should be avoided [emphasis in the original]. [29] Dr. G. Purdell-Lewis stated on March 7, 2002, that the worker had been attending the pain clinic with which he was associated. She was treated with nerve blocks for neck, right shoulder, and right arm pain. Dr. Purdell-Lewis recommended that the worker return in three weeks time for follow-up, assessment, and further treatment as indicated. [30] Dr. G. Ko, a physiatrist, examined the worker on April 21, Dr. Ko said that the worker described her pain as:... more severe in the right side neck, shoulder, radiating into the arm and hand. She described numbness involving all the fingers. [31] The worker said that she had tingling, pins and needles, weakness, clumsiness, and night-time awakening. The worker rated her pain as averaging between 7 and 8 out of 10. It was aggravated by moving, reaching overhead, lying down, bending, lifting, stress, loud noise, and 3 Fibromyositis is defined in Steadman's dictionary as: chronic inflammation of a muscle with an overgrowth, or hyperplasia, of the connective tissue.

6 Page: 5 Decision No. 181/07 other changes. The worker claimed to be totally disabled from virtually any activity. She was taking OxyContin, 4 Supendol, 5 Zofran, 6 Topamax, 7 Duragesic patches, 8 Zomig, 9 and Effexor. 10 Dr. Ko said that the worker was having psychiatric treatment. Dr. Ko's conclusions were: Her findings at this time are in keeping with: 1. Regional myofascial pain involving right side neck, shoulder girdle. This can cause referred pain down into the arm and hand. 2. Rule out vasculogenic thoracic outlet syndrome due to tight scalene and pectoral muscles. 3. Rule out tendonopathy involving shoulder, elbow, tendons. 4. Perpetuating factors include for sleep, ongoing stress, cigarette smoking, inadequate exercise and excessive weight. [32] Dr. Ko recommended imaging of the worker's shoulders, elbows and thoracic outlet and referral to a chiropractor. (v) Law and policy [33] Since the worker s claim is with respect to an injury that happened in 2001, the Workplace Safety and Insurance Act is applicable in this appeal. Section 13(1) says: A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. [34] The Legal Services Division of the Board confirmed that the following policy packages, Revision #6, are applicable to the subject matter of this appeal: Policy Package #1 - Initial Entitlement Policy Package #107 - Aggravation Basis/SIEF Policy Package #300 - Decision Making/Benefit of Doubt/Merits and Justice [35] I considered these policies in the context of the legislation, in coming to my conclusions. [36] According to the Board s Operational Policy Manual Document No , all adjudicators use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as 4 OxyContin is a trade name for the drug oxycodone hydrochloride. OxyContin is a controlled-release form of oxycodone prescribed to treat chronic pain. 5 Supendol is also known as oxycodone and is used to relieve moderate to moderate-to-severe pain. 6 Zofran is used for the prevention of nausea and vomiting related to radiation therapy, cancer chemotherapy, and surgery. 7 Topamax is used in the treatment of migraine headaches. 8 Duragesic patches deliver a continuous dose of the potent narcotic painkiller fentanyl for a period of three days. The patches are prescribed for chronic pain when short-acting narcotics and other types of painkillers fail to provide relief. 9 Zomig is used for migraine relief. 10 Effexor is an antidepressant medication used to relieve symptoms of depression and generalized anxiety.

7 Page: 6 Decision No. 181/07 the "five point check system." According to this system, an allowable claim must have the following five points: an employer a worker personal work-related injury proof of accident, and compatibility of diagnosis to accident or disablement history. [37] An accident is defined in Document No , which states: Accident includes a willful and intentional act, not being the act of the worker a chance event occasioned by a physical or natural cause, and a disablement arising out of and in the course of employment. [38] The Document goes on to say: (vi) A chance event is defined as an identifiable unintended event which causes an injury. An injury itself is not a chance event. Conclusions [39] Mr. Sampson submitted that the worker either injured her right shoulder or aggravated a preexisting condition of her right shoulder when she was "throwing the cards." In Mr. Sampson's submission, the movement itself was a trivial event. [40] Mr. Sampson referred me to a discussion paper titled "Injury and Disability Involving the Shoulder," prepared by Dr. H. Uhthoff at the request of the Tribunal, a copy of which was contained in the materials. Mr. Sampson relied on the following statement: In middle-aged or older people, changes inside the tendon (degenerative changes) make the tendon weaker to a point where a lesser effort or a trivial trauma can cause a tear. [41] Mr. Sampson argued that the worker had no shoulder problems before May 15, She had an immediate onset of pain in her left shoulder on that date. She reported the injury immediately. She stopped working immediately and sought immediate medical attention. In his submission, the claim was straightforward and should have been allowed. [42] Unfortunately, the issue is not as straightforward as Mr. Sampson suggested. [43] For benefits to flow, there must have been an accident. In this case, the worker did not describe an accident of any kind to the doctors who treated her or to me. There was no precipitating event that caused an injury. There was no "identifiable, unintended event." Nothing out of the ordinary happened that led to the onset of the worker's pain. She simply developed pain in her left shoulder while she was at work. [44] I reproduced the definition of an accident in section (v) of this decision. That definition includes the traditional definition of an accident as being "a chance event resulting from a physical or

8 Page: 7 Decision No. 181/07 natural cause." It includes an event that is wilful and intentional and not accidental. It also includes a disablement that arises in the course of employment. The policy document states that an injury itself cannot be the chance event. [45] There was no workplace accident on May 15, Therefore, the worker's appeal must be denied.

9 Page: 8 Decision No. 181/07 DISPOSITION [46] The worker's appeal is denied. [47] The worker is not entitled to benefits for an injury to her neck and right shoulder which the worker claims was either caused by or aggravated by her job duties. DATED: January 25, 2007 SIGNED: S. J. Sutherland