WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1790/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1790/15 BEFORE: J.E. Smith: Vice-Chair HEARING: August, 27, 2015 at Hamilton Oral DATE OF DECISION: December 4, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2770 DECISION(S) UNDER APPEAL: WSIB decision of Appeals Resolution Officer (ARO) N. Grunenko, dated March 8, 2013 APPEARANCES: For the worker: For the employer: Interpreter: C. Eve, Office of the Worker Adviser D. Seupersad, Office of the Employer Adviser 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. 1790/15 REASONS (i) Introduction [1] The worker appeals a decision of the ARO, which concluded that she did not have entitlement for a repetitive strain injury involving her left hand, left shoulder and neck, as a result of her job duties. The ARO rendered a decision following an oral hearing. (ii) Issues [2] The sole issue under appeal is whether the worker has initial entitlement for a repetitive strain injury (RSI) involving her left hand, left shoulder and neck. (iii) Background [3] The now 52-year old worker started as a senior mechanical draftsperson with the accident employer in She claimed she was injured on February 11, 2011, when she began experiencing pain and numbness in her left hand, left shoulder, and neck, which she claimed resulted from her repetitive job duties, working on the computer. In the decision dated March 8, 2013, the ARO denied initial entitlement finding that the repetitive strain injury the worker sustained was not compatible with her job duties. It is that decision which is now appealed to the Tribunal (iv) Law and policy [4] Since the worker claimed to be injured in 2007, 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. Section 126 requires the Tribunal to apply Board policy when making its decisions. [5] The standard of proof applicable in workers compensation proceedings is the balance of probabilities. Pursuant to section 124(2), the benefit of the doubt is given to the claimant in resolving an issue where the evidence for and against is approximately equal in weight. [6] 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; [7] Initial 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. [8] 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.

3 Page: 2 Decision No. 1790/15 [9] 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 [10] 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. (v) Testimony (a) Worker s testimony [11] The worker testified at the Tribunal hearing with respect to her job duties with the accident employer and her history of injury. She testified that she began working for the accident employer on January 2, 2007 as mechanical draftsperson, but had performed this same work for 15 years or so in total. She testified that her job duties involved creating and revising drawings on AutoCAD, for the manufacturing of products. She testified that in order to prepare drawings, she would measure parts or would be provided with measurements and would create drawings on the computer, using a keyboard that was situated approximately 30 inches off the ground, sitting in a chair that did not go high enough up for her arms to be level with the keyboard. The worker described her desk as L-shaped, and stated that she would sit in the corner of the L, with sheets of paper, 24x36 inches, with drawings, sitting flat on the desk to the left of her. She testified that the keyboard was placed in the corner of the desk, the monitor was suspended above eye level in the corner, and the mouse was on her right side. The worker testified that she would work with her left hand on the keyboard, looking up at the monitor, and continuously looking over her left shoulder to see the drawings beside her. [12] The worker testified that 80% of her day was spent drafting on the computer. Thus, in an eight-hour shift, with an hour off for lunch, she estimated that she would spend 6.5 to seven hours per day at the computer, working in this manner. She testified that between 2007 and 2011 there were no changes to her job duties per se, but the company was relocated to a new building approximately 2.5 years prior to the termination of her employment on July 1, She testified that in the new building, the tables were in cubicles and were up higher than they had been in the old facility. [13] The worker testified that a co-worker who worked with her as a draftsperson was fired approximately a year and half before her employment was terminated, and she had to take on his projects as well as her own. She testified that she was therefore performing the job for two draftspersons for many months prior to her symptom onset in February The worker testified that for the last year of her employment with the accident employer, she was the only one performing the draftsperson job. [14] The worker testified that she began to feel pain in the beginning of February 2011, with initial symptoms of numbness in the left ring and pinky fingers, with an ache similar to the feeling one has when warming up after coming in from the cold. She testified that she also had pain in the heel of her left hand, up to the elbow, shoulder and neck. The worker testified that she waited a couple of weeks to seek if the symptoms would go away and when they did not she made an appointment with her family doctor, at the beginning of March She testified that her doctor sent her for an EMG but it was not until months later so, in the interim, she

4 Page: 3 Decision No. 1790/15 approached her supervisor to tell him about her issues. She testified that her supervisor told her to report her condition to the Board. She testified that she discussed the cause of her symptoms with her supervisor, specifically, that her keyboard was up too high and it would be better if level with her arm. As well she asked that her monitor be moved to eye level so that she did not have to look up at it. [15] The worker testified that she continued to perform her regular duties until she was let go in July 2011, but was provided with an ergonomic keyboard, wireless mouse and a keyboard tray after an ergonomic assessment was conducted, and all of this helped to reduce her symptoms. She testified that she never had pain in her left arm, left hand, or neck prior to February (b) Employer s testimony [16] The Human Resource and Health and Safety Coordinator for the accident employer also testified at the Tribunal hearing. She testified that she had a basic knowledge of the worker s job duties and confirmed that she was working on AutoCAD creating drawings for products to be manufactured. She testified that there was a staff reduction in 2010 due to shortage of work in the manufacturing department and that a draftsperson was let go in July 2010 due to a shortage of work. She testified that she did not believe that the worker s workload increased when the draftsperson was let go, as there was not a lot of work coming in at that time, but could not confirm that she had any direct knowledge as to whether there was an actual impact on the worker s workload. (vi) Analysis [17] Ms. Eve, for the worker, argued that the medical evidence supports that the worker s job duties caused the repetitive strain injury to her left hand, shoulder and neck, which emerged in February 2011 and she therefore should have initial entitlement for the injury. On behalf of the employer, Mr. Seupersad argued that the worker s job duties are not compatible with her diagnosis, and on that basis argued that her appeal should be dismissed. [18] Having considered the parties submissions and the evidence before me in its entirety, I find, on a balance of probabilities, that the worker s job duties as a mechanical draftsperson with the accident employer were a significant contributing factor in the development of the left hand, left shoulder and neck injury she sustained, and she therefore has initial entitlement. I arrive at this conclusion for the reasons that follow. [19] To begin with, I find it significant that the worker s health care providers opined that the worker s left upper extremity and neck pain resulted from a repetitive strain injury. Further, I note that a number of her health care providers linked her RSI to her repetitive job duties specifically. In particular, I note that according to a Form 8 completed by the worker s family doctor, Dr. E. Alagic, dated March 1, 2011, the worker was reported to have sustained a repetitive strain injury, involving the left wrist, hand and fingers, with a first diagnosis speculated to be carpal tunnel syndrome. Dr. Alagic referred the worker for an EMG and prescribed a splint. [20] Dr. Alagic s clinical note on March 1, 2011 states the following: Left hand/fingers numb Using lots of hand and wrist/finger motions Positive Phalen sign

5 Page: 4 Decision No. 1790/15 A; CTS? P: EMG [21] I note that Dr. Alagic initially concluded that the worker s symptomology resulted from repetitive strain and that she had been using lots of hand and wrist/finger motions. [22] The worker testified, and I accept, that while waiting for further investigation she reported her symptomology to her supervisor, and as a result of that conversation she reported the injury to the Board. She also testified that she was referred to a general practitioner, selected by the employer for assessment, Dr. A. Greenspoon, and an ergonomic assessment of her work station was arranged. [23] The worker was assessed by Dr. Greenspoon in April, In a Functional Abilities Form (FAF) dated April 11, 2011, Dr. Greenspoon reported the worker s area of injury as Lt wrist LD 4-5 and stated that the worker was fit for normal duties as tolerated, with modified hours and limited gripping, pinching and typing with her left hand. In a Form 8 completed by Dr. Greenspoon, dated April 28, 2011, the worker s injury was reported as: R hand pain frequent use of R hand due to left hand injury overuse strain base of right index finger [24] Dr. Greenspoon diagnosed the worker with RSI of the right hand second index finger r/o CTS according to the Form 8, and prescribed the worker splints for both hands. In an FAF also dated April 28, 2011, Dr. Greenspoon reported the same area of injury, Lt wrist, LD 4-5, and noted medical restrictions in the use of both hands, limiting gripping and pinching. [25] In a subsequent FAF, dated May 11, 2011, Dr. Greenspoon reported the area of injury as Lt wrist LD 4-5/Rt hand, stated the worker was restricted from bending and twisting her left hand, and referred her for physiotherapy, noting that her EMG had been scheduled for May 18, In a physiotherapy referral note, Dr. Greenspoon reported as follows: WSIB RSI L>R hand, neck, shoulder pain R/O ulnar [ ] neuropathy [26] I find the medical reporting from Dr. Greenspoon, read in its totality, further supports the conclusion that the worker s left hand, left shoulder and neck symptomology resulted from a repetitive strain injury, and thus from her job duties. Dr. Greenspoon originally reported the left hand and wrist as the area of injury on April 11, 2011, stating that the worker was to limit her use of the left hand. In the next reporting, on April 28, 2011, Dr. Greenspoon stated that the worker had sustained a repetitive strain injury to her right hand from overuse due to the left hand injury. Finally, on May 11, 2011, Dr. Greenspoon referred the worker to physiotherapy for what he termed a WSIB injury, and which he diagnosed as repetitive strain in both upper extremities and neck, with the left worse than the right. Read as a whole, therefore, while Dr. Greenspoon did not state explicitly that the worker sustained an injury from her job duties, I interpret his reporting to indicate that her symptomology in the left hand, left shoulder and neck, resulted from a repetitive strain injury, from which she had sustained medical restrictions in performing her work. [27] Following the referral from Dr. Greenspoon, the worker was assessed by Occupational Therapist (OT), M. Lam who reported a diagnosis of L brachia plexus neuropathy/r RSI intrinsic of hand on May 11, [28] The worker was next assessed by physical medicine and rehabilitation specialist, Dr. A.T. Ghouse, on May 18, After reviewing the worker s EMG results, Dr. Ghouse

6 Page: 5 Decision No. 1790/15 reported diagnoses of left ulnar neuritis with a possible component of a cervical radiculopathy. Dr. Ghouse did not opine on causation. [29] In a letter addressed to the worker s representative dated January 24, 2012, Dr. Alagic reported that the worker had a diagnosis of ulnar neuritis, as a result of repetitive motion related to her occupation : I am writing this report regarding above named patient of mine and her claim related to the left hand/fingers problems arising from ulnar neuritis. She presented at my office for the first time on March 1, 2011 with numbness in left hand and fingers. Subsequent to that she had several assessments in Hamilton including an EMG where diagnosis of left ulnar neuritis is established. She had MRI done at [ ] Hospital on December 9, 2011 showing evidence of focal neuritis involving left ulnar nerve. She does onto have any history of any metabolic, toxic or traumatic injury that may account for her diagnosis. She does however have history of repetitive motion of her left elbow working as CAD draft person for many years. In my opinion her neuritis is a result of repetitive motion related to her occupation. [30] I find the foregoing evidence supports that the worker sustained a repetitive strain injury to her left shoulder, neck and left hand. I note that Dr. Alagic explicitly stated that it was his opinion that the worker s condition was the result of her repetitive job duties. Further, Dr. Greenspoon appeared to arrive at the same conclusion, by stating that the injury was a repetitive strain type, and by limiting the worker s job duties accordingly. Based on the opinions of the worker s treating health care providers, I am thus persuaded that the worker s left hand, left shoulder and neck condition, which emerged on February 11, 2011, was a result of repetitive strain. [31] I am also satisfied that the tasks which resulted in the repetitive strain injury were those performed by the worker in her job as a draftsperson. I find the compatibility is supported not only by the opinions on causation expressed Dr. Alagic explicitly, but also by the suggestions from Dr. Greenspoon s reports. I find compatibility between the injury and the worker s repetitive job duties is also supported by the report of the ergonomist who assessed the worker s work station. In that report, dated May 9, 2011, the ergonomist stated that the set-up of the worker s work area, and her work duties, posed potential risk factors: Potential risk factors attributed to [the worker s] position including prolonged static postures (prolonged sitting) and improper biomechanics (joints out of neutral alignment). [32] Based on those risk factors, the ergonomist made recommendations to move the worker s monitor closer to her, to position the monitor so that it was lined up at eye level to facilitate a neutral neck posture, to change her mouse to facilitate ease of movement, to change the positioning of her keyboard to a negative tilt to keep the wrists in a neutral position, and to provide her with a document holder, so that the documents to which she referred were at eye level rather than flat on the desk at her side. [33] I find the ergonomist s report further evidence of compatibility in that, in the ergonomist s view, the worker s work set up posed potential risk of injury due to prolonged sitting in static postures and improper biomechanics (joints out of neutral alignment). I

7 Page: 6 Decision No. 1790/15 interpret these comments to infer compatibility of a repetitive strain injury, such as was sustained by the worker, with her repetitive job duties, performed in an ergonomically deficient set up. [34] I also accept the worker s testimony with regard to her job duties, and her increased workload in the months leading up to February 2011, once her co-worker was dismissed. I found the worker to be a credible witness and note that her testimony in this regard is not contradicted by the evidence before me, not even by the employer s witness at the Tribunal hearing who admitted that she had no first-hand knowledge about the worker s workload after the co-worker was fired. I therefore accept that the worker s workload increased, as she testified, and thus I am persuaded that she was performing duties at her computer, with a static neck extension posture for prolonged periods, with her left hand lifted to the keyboard out of a neutral position, while continually also looking over her left shoulder at drawings, and that these activities were performed by her for 6.5 to seven hours per day. Further, as stated previously, I accept that the worker s ergonomic set up, as it was when the company moved to the new facility, posed risk factors in accordance with those outlined by the ergonomist. Based on this evidence, I find the worker s job duties, leading up to February 2011, were compatible with the repetitive strain injuries to her left shoulder, neck and left hand with which she was subsequently diagnosed. [35] The employer s representative argued that the worker s diagnosis changed from CTS to ulnar neuritis, and this indicated that the worker s job duties did not cause her condition. I disagree with this submission. Dr. Alagic reported that CTS was possible when he first assessed the worker on March 1, 2011 and sent her for further investigation, which later revealed ulnar neuritis and cervical radiculopathy. The evolving diagnosis does not undermine the view of Dr. Alagic, however, who consistently over the course of investigating the specific diagnosis, maintained the view that the worker s condition resulted from repetitive strain and specifically from her repetitive job duties. Further, it was also the view of Dr. Greenspoon and OT Lam that the worker s injury, whether diagnosed as neuritis, neuropathy or radiculopathy in these areas, was the result of repetitive strain. [36] The employer s representative also argued that the worker s duties were not compatible with her injuries, as was concluded by the Board s Medical Consultant on June 28, I prefer the opinion of the worker s treating health care providers, who had the opportunity to examine the worker and assess the physical demands of her job, and in so doing concluded that the injury was a repetitive strain, with various areas of nerve involvement as noted above, and compatible with the repetitive duties associated with her job. Finally, again I note the ergonomist s reporting on May 9, This reported noted that the worker s work set up posed potential risk factors, given her static seated postures, her neck extension to look at the monitor, and her joint positioning that was out of neutral alignment, throughout the majority of her work day. Thus, I find this reporting further supports the compatibility of the worker s injury with the job duties she performed in the months prior to February 11, [37] For all of the foregoing reasons, I find that the worker has initial entitlement for a repetitive strain injury to her neck, left shoulder and left hand, on a disablement basis, resulting from her repetitive workplace duties.

8 Page: 7 Decision No. 1790/15 DISPOSITION [38] The appeal is allowed. The worker has entitlement for a repetitive strain injury to her left hand, left shoulder and neck, on a disablement basis, resulting from her job duties as a draftsperson with the accident employer, with symptom onset on February 11, [39] 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: December 4, 2015 SIGNED: J.E. Smith