SUMMARY DECISION NO. 1080/00. Disablement (strenuous work); Sewing machine operator.

Transcription

1 SUMMARY DECISION NO. 1080/00 Disablement (strenuous work); Sewing machine operator. The worker appealed a decision of the Appeals Officer denying entitlement for a bilateral foot condition. The worker's condition was a repetitive strain disablement from use of a sewing machine that was malfunctioning and stiff to operate. The appeal was allowed. [7 pages] DECIDED BY: Marafioti DATE: 01/09/2000 ACT: WCA

2 2000 ONWSIAT 2499 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1080/00 [1] This appeal was heard on May 9, 2000, by Tribunal Vice-Chair V. Marafioti. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Appeals Officer G. Sicilia, dated May 28, That decision concluded that the worker s complaints with regards to her feet and legs, were not related to her operating the sewing machine since April [3] The worker attended and was represented by Pearl Gowan. The employer did not participate. The worker s sister attended as an observer. THE RECORD [4] I heard oral evidence under oath from the worker and considered the following documents: Exhibit #1: Case Record; Exhibit #2: Addendum #1; Exhibit #3: Addendum #2; Exhibit #4: Letter and attachments from worker s representative, April 6, 2000; Exhibit #5: Hamilton Health Sciences Discharge Summary. [5] The representative made submissions. THE ISSUES [6] I must determine whether the worker is entitled to compensation benefits from October 12, The worker relates her bilateral foot condition to her duties as a sewing machine operator. THE REASONS (i) Background [7] The worker has been working as a sewing machine operator since She initially began sewing hockey pants and then moved to top stitch operations in The worker began experiencing problems in June 1995 while pushing a pedal on the machine, which was stiff to operate. [8] The Appeals Officer could not conclude that compatibility exists between the diagnosis of overuse and strain of the feet and legs and the worker s job duties on the sewing machine.

3 Page: 2 Decision No. 1080/00 (ii) The law and Board policy [9] On January 1, 1998, the Workplace Safety and Insurance Act (WSI Act) took effect. This legislation amends portions of the Workers Compensation Act, which continues to apply to injuries which occurred before January 1, All references to the Act in this decision mean the Workers Compensation Act as it read on December 31, 1997, unless otherwise indicated. [10] An important change relevant to this appeal is that the Appeals Tribunal is now required to apply Board policy in accordance with sections 112 and 126 of the WSI Act. [11] In accordance with subsection 126(2) of the Workplace Safety and Insurance Act, 1997, the Workplace Safety and Insurance Board (the Board) confirmed that specific policies Document # , and # ad general policies Document # , # would apply to this appeal (see Addendum #1). [12] Section 1(1)(a) of the Workers Compensation Act states: 1(1) In this Act, accident includes, a wilful and intentional act, not being the act of the worker, a chance event resulting from a physical or natural cause, a disablement arising out of and in the course of employment. [13] The definition of disablement includes: a condition that emerges gradually over time, an unexpected result of working duties. [14] Disablement arising out of and in the course of employment requires that the disablement which the worker suffers must have some causal relationship with the work performed. It is not sufficient that the disablement comes on during work, but rather there must be something about the work which can be considered to have caused the disablement to come on, such as strenuous work, awkward position, an unaccustomed strain. [15] In arriving at my decision, I have considered the legislation and relevant Board policies in the context of the worker s testimony and submissions from Ms. Pearl Gowan. (iii) The Vice-Chair s findings [16] The worker testified that she could not control the machine s speed as required for proper sewing. She described that with her right knee, she was required to apply pressure to lift the wheel of the sewing machine which she estimated could occur as much as 640 times per eight hour shift. The worker related that in order to control the speed she would have to use her feet and legs more often than normal, on the foot pedals, which controlled the speed of the needle. She claimed that the foot pedals were heavy and stiff and, therefore, she had to exert more pressure with her feet and legs to get the needle to move as required. There was also a lever on the right side by her right knee which she was required to use, to lift the side of the needle.

4 Page: 3 Decision No. 1080/00 [17] According to the worker, she had problems pushing on the pedals, which were too stiff and generally had difficulty operating the machine. Although a mechanic fixed it and adjusted it, the worker continued to have problems with it as it became too loose and hard to control. When it was too loose, the machine would run away and to ensure that she had control of the speed the worker would have to use her feet and legs more often on the foot pedals to control the pedals which controlled the speed of the needle. When the foot pedal was heavy, this required more push and pressure from the feet and legs to get the needle to move. [18] As indicated earlier, there was a lever on the side of her right knee, when having to lift the wheel on the side of the needle, she would push and hold with pressure using the right knee and leg, using the right knee to lift the wheel. She would do this motion more than 640 times a shift. [19] I note that there is confirmation from co-workers that the machine pedal was malfunctioning although this was not confirmed by the mechanic who adjusted the machine. [20] The machine treadle was hard to push and hard to control. According to the worker the mechanics had worked on it several times finally putting on a new motor clutch which the worker found even harder to control because it was faster. [21] I note that the worker s family physician, Dr. R. Arnold, diagnosed overuse and strain of the feet and legs with a date of accident stated as September 22, [22] The worker s physician reported also on November 11, 1995, again indicating overuse syndrome of both legs on machine at work. Dr. Arnold referred the worker to Dr. J.A. Israel, an orthopaedic specialist. Dr. Israel reported on November 16, 1995, as follows: I saw [the worker] in my office on November 16 th, 1995 for assessment of pain in both lower extremities PHYSICAL EXAMINATION: Examination reveals she walks without difficulty. She can walk on the tips of her toes and heels s atisfactorily There was no swelling. There is a vague mild tenderness over the lateral aspects of her calves bilaterally and over her thighs. She has a full range of motion of her hips, knee and ankles. These motions are not associated with pain. On physical examination, there is no specific pathology. RADIOLOGICAL EXAMINATION: X-rays were taken at Diagnostic Imaging Associates on October 12 th The x-rays of both of her feet are within normal limits. The x-rays of her ankles are within normal limits. The x-rays of both knees are within normal limits. The x-rays of her tibiae and fibulae are within normal limits. DIAGNOSIS: Pain in both lower extremities. PLAN OF MANAGEMENT: At present time, there is no pathology of physical examination. She may have had an acute strain of the soft tissue of her feet and ankles with referred pain more proximally. It may have been associated with the repetitive nature of her work. It is very difficult, at this stage, to say whether indeed that has occurred. The other is some generalized polymalgia which may have occurred concurrent with work-related problems. To investigate this further certainly would have required probably a referral to a rheumatologist

5 Page: 4 Decision No. 1080/00 [23] Dr. R. Arnold reported on December 13, 1995, as follows: [The worker] was initially seen in my office on the 22 nd of September 1995 complaining of burning in both feet and legs from the knee down. She was found to have some tenderness and swelling over the anterior surface of both her legs. All movements were normal. Apparently [the worker] had no problems with her legs or feet until she was placed on a sewing machine which needed extra pressure exerted by the foot control in order to control the machine. A diagnosis of tendinitis of both legs and feet was made and [the worker] was prescribed Voltaren 50 mg and advised to commence therapy to her legs. She was next seen on the 4 th of October 1995 when she was still working but required more anti-inflammatories. On October 11, 1995 [the worker] presented with the same complaints. On the 12 th of October 1995 her left upper leg was found to be swollen Since this time, [the worker] has been in my office on a weekly basis sometimes more frequently still complaining of pain in her feet and legs. [The worker] entirely relates the onset of the symptoms of her disability to a malfunctioning machine. It is possible that [the worker] may have developed tarsal tunnel syndrome of Morton s Neuroma from the nature of her work as the burning sensation would indicate nerve irritation. [24] Dr. P. Stavropoulos reported that the treatment plan was to proceed along the presumptive diagnosis of a posterior tibial tendonitis secondary to hyperpronation. [25] The worker was seen on December 18, 1995, by Dr. R. Faraawi, a rheumatologist who found an unremarkable examination and advised a return to work. [26] On January 22, 1996, the worker was seen by orthopaedic surgeon Dr. R.G. Stewart. Dr. Stewart stated: On examination, she has got a normal neurovascular examination of each lower extremity I am not sure what is going on with this lady but she claims she can t do her job as a sewer. Because of this, she should be assessed at the Regional Evaluation Centre. She may require some sort of permanent job modification and/or a Functional Ability evaluation. I do not think she is a surgical candidate. [27] Dr. O. Veidlinger examined the worker and reported on May 15, 1996, as follows: There are thus no neurological deficits but it appears that she had a repetitive strain type of syndrome involving both thigh muscles related to her work and she should be retrained for a type of work which avoids this manoeuvre.

6 Page: 5 Decision No. 1080/00 [28] The worker was seen by Dr. H.W. Beattie at the Healing Link Rehabilitation Clinic on May 27, Her problem is bilateral but examination of her lower extremities is perfectly normal As far as returning to work is concerned I have explained to her that her symptoms are all subjective, that no damage or ham is going to come to her extremities if she returns to work at the present time and that she should ask for work in which she avoids any prolonged standing or any prolonged sitting and she should be able to change her position if necessary She has been labelled by the Lockwood Clinic where she was seen in consultation as having a fibromyalgia [29] The worker was also seen by Dr. R.D. Nevin from the Lockwood Clinic. Dr. Nevin reported on June 10, 1996, as follows: I agree with you completely. Her diagnosis of repeated strain injury and associated fibromyalgia is obvious and undeniable. [30] The worker was seen by Neurologist Dr. W.J. Oczkowski on December 9, He stated: Her problems with her feet began in about 1995, somewhere around September. It was at that time that she complained of a stiff foot pedal while working at her job sewing Comments & Recommendations: This is a most puzzling problem. However, given the onset of the difficulties and the progression of her pains, in association with her work, I wonder if we are dealing with a repetitive strain-like problem, and/or in the realms of fibromyalgia associated with a work-related injury I cannot help but think that this is an equivalent problem to a carpal tunnel-like, repetitive strain injury problem in the hand only present in the feet, given the type of work she was doing. [31] Dr. Oczkowski reported again on February 5, 1997, as follows: Comments & Recommendations: My opinion is that her symptoms are those of a myofascial pain syndrome associated with her previous employment. This is a repetitive strain injury type of problem related to her previous work. It should be treated as such [32] On December 2, 1997, Dr. L. Hart, Director, Rheumatic Disease Unit, Hamilton Health Sciences reported on December 2, 1997, as follows: [The worker s] persisting leg pain still has not been fully exp lained, but, from the rheumatologic perspective, I am not sure that I have much more to add in this regard. I have therefore encouraged her to persist with symptomatic management [33] I note that the Board s Medical Consultant Dr. Malayil indicates the following: Based on the information we have on file at the present time and noting the lack of positive physical findings in the consultant s report to support any pathology in this worker s lower extremities, in my opinion, compatibility between the diagnosis, over-use and strain of feet and legs and worker s job appears doubtful.

7 Page: 6 Decision No. 1080/00 [34] Dr. Mastrilli, the Board s Unit Medical Advisor, also was unable to establish a specific causal relationship between the diagnosis of overuse syndrome of both legs and the accident history. However, very little reason is given as to how he came to this conclusion. [35] I have reviewed the evidence, in particular the medical reporting and I am satisfied that the majority of the medical reporting confirms a causal relationship between the worker s employment and her condition, with the possibility of a repetitive strain myofascial injury attributed to the nature of her job on the sewing machine. I accept that the worker did complain to the employer about the difficulties with the functioning of the sewing machines and I accept her complaints of extreme fatigue which she attributed to the operation of the old malfunctioning machine. There is also confirmation by a co-worker that the machine was difficult to operate. In my view, there is sufficient evidence, on a balance of probabilities, to confirm and support that this lady s problem can be causally related to her work which contributed to her disability. The worker suffered from bilateral lower extremities of a repetitive strain syndrome. Although there is a paucity of positive physical findings to support pathology, there is sufficient medical reporting from a number of treating doctors, supporting a compatibility between the diagnoses of overuse and strain and a repetitive strain syndrome and her job duties as a sewing machine operator. [36] I do note that the worker suffered a pre-existing right foot disability involving the metatarsal area of her right foot for which she was treated with orthotics. In my view, however, the faulty, malfunctioning machine in 1995 served to perhaps exacerbate the worker s problems with a diagnosis of overuse fibromyalgia. As I already indicated, I am persuaded that a causal relationship and sequelae of same is medically supported. The worker is therefore entitled to benefits subsequent to October 12, [37] I am satisfied that the preponderance of medical evidence supports that the injury was caused by the work. The worker has been diagnosed with an overuse/repetitive strain injury. I am satisfied, therefore, that the worker s injury is causally related to her work and in particular the malfunctioning machine. THE DECISION [38] The worker s appeal is granted. DATED: September 1, SIGNED: V. Marafioti.