WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2891/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2891/16 BEFORE: E. Kosmidis: Vice-Chair HEARING: November 1, 2016 at Kitchener Oral DATE OF DECISION: November 30, 2016 NEUTRAL CITATION: 2016 ONWSIAT 3264 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decisions dated May 22, 2013 and March 17, 2014 APPEARANCES: For the worker: For the employer: Interpreter: J. Richards, Lawyer Not participating A. Pople, Spanish 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. 2891/16 REASONS (i) Introduction [1] In a decision dated March 7, 2011, the eligibility adjudicator denied entitlement for right shoulder tendinitis. [2] In a decision dated May 1, 2013, the eligibility adjudicator denied entitlement for right Carpal Tunnel Syndrome. [3] These decisions were appealed by the worker. They were heard separately by two different AROs. Both of the worker s appeals were dismissed. [4] The worker now appeals the two ARO decisions. [5] The employer is not participating in this appeal. (ii) Issues [6] The issues under appeal are as follows: 1. Initial entitlement for a right shoulder injury which was denied by the ARO in a decision dated May 22, Initial entitlement for right Carpal Tunnel Syndrome (CTS) which was denied by the ARO in a decision dated March 17, [7] The worker claims that both injuries occurred out of and in the course of her employment including on a disablement basis. (iii) Background [8] According to the Form 6 dated March 4, 2011, the now 49 year old worker started with the accident employer in November of She was working part time at 24 hours per week. On February 14, 2011, she was working as a cook in a fast food restaurant when she injured her right shoulder, arm and hand. She reported this to her employer on February 18, 2011 although the Form 6 also indicates that the store manager was aware of the worker s physical limitations before this date. [9] The worker went to the emergency department on February 19, The hospital records indicate that the worker was complaining of extreme weakness and right sided numbness. The record states that this started four days earlier. [10] The February 19, 2011 Form 8 completed by a registered nurse records increased numbness of the right arm and shoulder pain. The diagnosis is right shoulder sprain. The worker was told to follow up with her family doctor. [11] According to the March 2, 2011 Form 8 prepared by the physiotherapist, the worker began physiotherapy on March 2, The diagnosis listed on the Form 8 is a right shoulder strain and tendinitis. [12] The worker was seen by Dr. Ballard, a specialist in physical medicine and rehabilitation. In her report dated July 6, 2011, Dr. Ballard notes that the worker is unable to lift her right arm

3 Page: 2 Decision No. 2891/16 secondary to weakness and pain. Dr. Ballard found evidence of moderate to severe CTS on the right. Dr. Ballard recommended physiotherapy and that the worker wears a splint on her right wrist at night. [13] A July 20, 2011 x-ray report noted mild degenerative change of the rotator cuff and at the shoulder joint. [14] Dr. Ballard saw the worker for a follow up appointment. In her report dated November 22, 2011 she states that it was her impression that the worker has diffuse right upper extremity pain and is developing disuse atrophy and chronic pain. Dr. Ballard recommended that the worker stop using the wrist brace and would refer the worker for an ultrasound. [15] Dr. Ballard s report dated December 22, 2011 confirms that she saw the worker twice. By way of history, Dr. Ballard recorded the following: This information is provided in my consult note dated July 6, The worker gave a history that on February 14, 2011 she was at work. She had been cutting chicken, breaking and pulling them part repetitively all day when she developed a shock like sensation in the right hand. She also endorsed pain into the right scapula region as well as her head and ear, down the right arm. She reported she was unable to lift her right arm secondary to weakness and pain. She still endorses electric shock like sensation into her fingers along the volar aspect of her palm in the right. On observation, it was noted that she held her arm in a guarded and protected position. She limited the movement of the arm. [16] A December 29, 2011 ultrasound of the right shoulder suggested a partial thickness tear of the supraspinatus tendon. [17] A July 21, 2012 report from Dr. McCallum notes that the worker s symptoms began while cooking at work in February of He states that the worker has been diagnosed with chronic right arm pain and regional pain syndrome. [18] The worker was seen by Dr. Ballard on November 28, In her report dated November 28, 2012 she reviews the December 2011 ultrasound report and notes that it revealed a partial thickness tear of the supraspinatus tendon and subacromial bursitis. [19] The worker saw Dr. Ballard again on August 27, 2014 for a follow up electrodiagnostic evaluation. According to her report dated August 27, 2014, the study was normal and there was no evidence of any entrapment neuropathy. Dr. Ballard states that the worker s previous EMG study showed signs of CTS on the right but this has resolved. Previous medical history [20] The record includes the clinical notes from the worker s family doctor, Dr. McCallum. The following is a summary of the relevant information contained in these notes. [21] Dr. McCallum referred the worker for physiotherapy in October of 2005 for complaints which included constant right arm pain. [22] Dr. McCallum s clinical note entry for October 3, 2005 notes that the worker is complaining of paresthesia in her right third and fourth digits especially at night associated with pain in the right shoulder and upper arm. It is his opinion that the worker is probably suffering from right CTS.

4 Page: 3 Decision No. 2891/16 [23] However, in the October 21, 2005 entry, Dr. McCallum states that the worker s symptoms are generally improved since beginning physiotherapy. [24] On September 9, 2008, the worker reported right side pain which was aggravated by lateral flexion. (iv) Law and policy [25] Since the worker claimed to be injured in 2011, the Workplace Safety and Insurance Act, 1997 (the WSIA) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [26] An accident is defined in section 2(1) to include: (a) a wilful and intentional act, not being the act of the worker, (b) a chance event occasioned by a physical or natural cause, and (c) disablement arising out of and in the course of employment; [27] General entitlement to benefits is governed by section 13: 13(1) 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. (2) If the accident arises out of the worker s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker s employment, it is presumed to have arisen out of the employment unless the contrary is shown. [28] The statutory presumption set out in section 13(2) does not apply to an injury by disablement. See, for example, Decisions No. 268 and 42/89. [29] Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, Decision No [30] The standard of proof in workers compensation proceedings is the balance of probabilities. Pursuant to subsection 124(2) of the WSIA, the benefit of the doubt is resolved in favour of the claimant where it is impracticable to decide an issue because the evidence for and against the issue is approximately equal in weight. [31] Pursuant to section 126 of the WSIA, the Board provided the policies applicable to this appeal. I have considered these policies as necessary in deciding the issues in this appeal, in particular: Operational Policy Manual (OPM) Document No , Adjudicative Process; OPM Document No Definition of Accident. [32] OPM Document No , Definition of Accident, describes a chance event as an identifiable unintended event which causes an injury, an injury itself is not a chance event. The policy defines a disablement as a condition that emerges gradually over time or an unexpected result of working duties. [33] OPM Document No , Adjudicative Process, states that an allowable claim must have five points: an employer, a worker, personal work-related injury, proof of accident,

5 Page: 4 Decision No. 2891/16 and compatibility of diagnosis to accident history. OPM Document No provides the following guidelines for determining proof of accident: Proof of accident Decision-makers may consider the following when examining proof of accident, (v) Does an accident or disablement situation exist? Are there any witnesses? Are there discrepancies in the date of accident and the date the worker stopped working? Was there any delay in the onset of symptoms or in seeking health care attention? Testimony [34] The worker requested a Spanish interpreter for the hearing. However, the interpreter had not arrived at the time that the hearing was scheduled to start. The hearing was delayed for approximately 30 minutes but the interpreter still had not arrived. The worker and her representative were given the option of rescheduling or proceeding with the hearing. They elected to proceed with the hearing without the interpreter. The interpreter arrived during the worker s testimony and remained for the balance of the hearing. [35] The worker had done an internet search and had obtained pictures of a similar workplace involving the preparation of fried chicken. I admitted the pictures into evidence and the worker used them when she gave her testimony explaining her job duties and what they involved. [36] The worker started with the accident employer, a fast food restaurant specializing in fried chicken, on November 16, Prior to that she had worked at other fast food chains and at a retail store. [37] She was initially hired by the accident employer to package the food. However, her responsibilities changed effective January 24, She then began cooking chicken for most of the day, working a five to six hour shifts, frequently without breaks. In 2011, her hours were from 10 a.m. to 5 p.m. or 10 a.m. to 3 p.m. During the week, she worked in the kitchen by herself. [38] The worker described the cooking process in great detail. After putting on a uniform including gloves, she would go into the walk-in cooler where she would obtain four bags of cut up chicken. The worker testified that the chicken was already cut up into pieces of white and dark meat. [39] Each bag had 18 pieces of chicken. She brought the chicken to her station and she used scissors to open the bag. She then placed the 18 pieces into a basket that was then placed in water. She had to lift the basket up and down into the water seven times and then take the chicken out and pat it dry. She would then remove any chicken feathers that had been left on the chicken. She would then place the chicken in a flour mixture to coat it. In order to do this, she had to move her hands 10 times and pat down the flour onto the chicken. Additionally, she had to press down on each chicken thigh to ensure that the bone was broken and the chicken wings had to be twisted.

6 Page: 5 Decision No. 2891/16 [40] Once this process was completed, the chicken went into a clamshell which is the container used for frying the chicken in the deep fryer. This container looks somewhat like a wire birdcage. The worker testified that the clamshell that she used had four levels to fit 72 pieces of chicken and that in total, the loaded clamshell weighed 33 to 35 pounds. Once the chicken was placed into the clamshell, she would put the chicken into the fryer and close the fryer lid. The fryer lid had a handle which needed to be locked down requiring some force. [41] The chicken cooked in the fryer for 70 minutes. Once the chicken was cooked she used a hook to lift up the clamshell out of the fryer. She then opened the lid and removed the clamshell from the fryer by lifting it out. Subsequently, the chicken was put onto a tray and then she placed the tray into one of two warming ovens. [42] She was also responsible for cleaning the food preparation area and washing the trays and clamshells. [43] The worker testified that on February 14, 2011, while lifting the 72 pieces of chicken, she started to feel pain in her right side and back. She reported this to her manager. Her manager tried to find someone to take her shift so that she could leave but was unable to find another employee to come to work. She testified that her manager did not take her seriously. She completed her shift. [44] The worker testified that on February 16, 2011, she came into work and found that the evening crew had left a huge mess for her to clean from the night before. The worker told her manager that she was still in pain but according to the worker, her manager started yelling and belittling her. She finished her shift. The worker testified that she then worked Friday night which was February 18, She completed her shift on the Friday. [45] She worked on the Saturday from 10 a.m. to 3 p.m. but after her shift on Saturday went directly to the hospital emergency as she was not feeling her arm. She was in pain. Her arm had stopped working as she had been unable to move her right arm by around 2 p.m. [46] At the hospital she complained that her whole right side was numb and painful. She was told to follow up with her family doctor, Dr. McCallum. She saw Dr. McCallum on March 1, [47] The worker testified that she has not returned to work. (vi) Submissions [48] The worker s representative referred to the Board s policy Adjudicative Principles and the five point check system used for ruling on initial entitlement. The representative submitted that all five points had been met and based on the worker s uncontradicted evidence, the worker should be granted initial entitlement for both right CTS and her right shoulder. [49] With respect to the worker s right CTS, the worker s representative submitted that the worker s evidence established that her duties were repetitive and that she was required to use force when breaking chicken thighs, pressing down on the cooker and lifting 72 pieces of chicken in the clam shell. [50] The worker s representative submitted that the duties performed by the worker were a significant contributing factor in the onset of her CTS symptoms. While the worker did have

7 Page: 6 Decision No. 2891/16 pre-existing condition of CTS, she had few symptoms and her work duties re-aggravated her condition. [51] With respect to the shoulder, the worker s representative again referred to the worker s testimony relating to her job duties and the fact that she worked alone in the kitchen. The representative characterized the worker s duties as intense. [52] Finally, he relied on Dr. Ballard s opinion as set out in the December 22, 2011 report to establish compatibility for both conditions. (vii) Analysis [53] The appeal is allowed in part for the reasons set out below. Initial entitlement right shoulder [54] The worker s appeal on initial entitlement for the right shoulder is denied. The December 29, 2011 ultrasound found fluid in the subacromial bursa and cortical irregularity of the humeral head consistent with degenerative changes. The findings also suggested a partial thickness tear of the supraspinatus tendon. [55] The worker s representative relied on Dr. Ballard s report date December 22, 2011 as establishing compatibility for the right shoulder. Dr. Ballard states: Repetitive activity such as gripping and pulling chicken apart could contribute to the symptoms of carpal tunnel syndrome. It would be probable that they could contribute to a shoulder repetitive strain injury as well. [56] Dr. Ballard bases her opinion on the history provided by the worker. From the history provided by the worker, Dr. Ballard describes the worker s job duties as cutting chicken, breaking and pulling them apart repetitively all day. It is her opinion that this specific activity could contribute to a shoulder repetitive strain injury. However, I find that this is not an accurate description of the worker s job duties. [57] The worker testified that the chicken that she prepared was already cut into pieces. Dr. Ballard based her opinion relating to the worker s shoulder injury on the assumption that the worker was required to break and pull apart chicken repetitively all day. [58] Based on the worker s testimony, I find that the worker was not required to grip and pull chicken apart repetitively all day. In view of the fact that Dr. Ballard s opinion on the shoulder injury is based on an inaccurate assumption of the worker s job duties, I place no significance on Dr. Ballard s opinion with respect to the worker s claimed right shoulder injury. [59] I also note that the worker was ultimately diagnosed with a partial thickness tear of the supraspinatus tendon. I find that there is no medical evidence of any significance that links this diagnosis to her job duties. [60] Therefore, I am unable to conclude that the worker s job duties were a significant contributing factor to her right shoulder condition. [61] The worker s appeal for initial entitlement to a right shoulder injury is denied.

8 Page: 7 Decision No. 2891/16 Initial entitlement right CTS [62] I find that the worker has initial entitlement for right CTS. [63] In October of 2005, Dr. McCallum records that the worker was complaining of paresthesia in her right third and fourth digits, especially at night associated with pain in the right shoulder and upper arm. His diagnosis was right CTS. [64] These symptoms are consistent with the information contained in the Tribunal s Medical Discussion Paper on CTS dated February 2000 and revised May 2001, prepared by Dr. Brent Graham, orthopaedic surgeon, on how to diagnose possible CTS. This paper was included in the case materials. In ensuring an accurate diagnosis Dr. Graham states: While the relative importance of the physical examination and electrodiagnostic testing remains controversial, most clinicians agree that the cardinal symptom of carpal tunnel syndrome is a sensory disturbance, specifically numbness or tingling, in the anatomic distribution of the median nerve. That are includes the thumb, index, middle and ring fingers of the hand. [65] On the issue of nocturnal symptoms, Dr. Graham further states: A nocturnal symptom of sensory disturbance is a classic manifestation of carpal tunnel syndrome. [66] Therefore, I find that the worker had been previously diagnosed with right CTS in However, there is no evidence before me to indicate that the worker continued to complain of right CTS symptoms beyond October, [67] I also note that the worker was diagnosed with right CTS again in 2011 after a change in her work duties with the accident employer from packaging food to preparing and frying chicken. The worker testified about the change in the nature of her job duties and described the process involved with preparing and frying chicken in great detail. [68] Dr. Ballard has opined that repetitive activity such as gripping and pulling chicken apart could contribute to the symptoms of CTS. However, as I have previously found, this is not the work that was performed by the worker. However, Dr. Ballard goes on to also state that repetitive gripping and grasping type activities also tend to promote symptoms of CTS. In her report dated December 22, 2011 she states: Repetitive gripping and grasping type activities tend to promote symptoms of carpal tunnel syndrome. Therefore it is probable that the worker s job duties made a significant contribution to the carpal tunnel issue in her right upper extremity. [69] In reviewing the worker s testimony and her description of her job duties, I accept the worker s uncontradicted testimony that she was required to remove chicken feathers and then have to coat the chicken with flour by patting down the flour onto the chicken. The worker also testified that she had to press down on each chicken thigh to ensure that the bone was broken and she had to twist the chicken wings to ensure good presentation. The worker testified that she worked in the kitchen by herself and did not regularly take her breaks as it was a very busy store. [70] I accept that these duties required the worker to perform repetitive gripping and grasping type activities when handling the already cut pieces of chicken. While the worker was also performing other varied duties, the worker testified that the primary responsibility of her job and the majority of her time was spent handling and cooking chicken which I find did require

9 Page: 8 Decision No. 2891/16 repetitive gripping and grasping. I accept Dr. Ballard s opinion that it is probable that the repetitive gripping and grasping activities made a significant contribution to her right hand CTS. [71] Accordingly, the worker has initial entitlement for right CTS. [72] The nature and duration of the worker s benefits flowing from this decision are remitted back to the Board for determination, subject to the usual rights of appeal.

10 Page: 9 Decision No. 2891/16 DISPOSITION [73] The appeal is allowed in part as follows: 1. The worker s appeal on initial entitlement for a right shoulder injury is denied. 2. The worker s appeal on initial entitlement for right CTS is allowed. [74] The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. DATED: November 30, 2016 SIGNED: E. Kosmidis