WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1374/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1374/14 BEFORE: V. Marafioti : Vice-Chair E. Tracey : Member Representative of Employers J. A. Crocker : Member Representative of Workers HEARING: July 17, 2014 at Toronto Oral Post-hearing activity completed on August 6, 2014 DATE OF DECISION: October 23, 2014 NEUTRAL CITATION: 2014 ONWSIAT 2294 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated December 6, 2012 APPEARANCES: For the worker: For the employer: Interpreter: D. A. Yogasundram, Lawyer Did not participate 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. 1374/14 REASONS (i) Introduction [1] The worker appeals the decision of the Appeals Resolution Officer (ARO) D. Bollard dated December 6, That decision found that the worker's right lower arm, wrist condition was not a direct result of her job duties performed and denied the worker initial entitlement. The worker appeared and provided oral testimony. Following the hearing of testimony in this appeal on July 17, 2014, the Panel allowed the worker to submit records of her physiotherapy treatments. Final submissions were made in writing by the worker's representative Mr. Yogasundram dated July 28, (ii) The issues [2] The Panel must determine whether the worker has initial entitlement for a right lower arm and wrist condition claimed to be related to her regular employment duties at work. (iii) Background [3] The Panel summarizes the background facts as follows. [4] The worker began her work with the accident employer in August 2009 as a cashier/sales worker. She worked an eight hour day, on average five to six days a week for a total of about 39 hours per week. On arrival at work she would get her cash ready and set up her cash register area. Her job involved checking out customers at the cash desk which required a combination of manually scanning a product as well as keying in names, telephone numbers, SKU numbers and bagging items. The worker's duties also included inventory cycle counts requiring manual writing of SKU numbers, physical contents in the store and the warehouse and then inputting these accounts into the computer. Approximately 50 to 200 items are inputted on a daily basis. Checking and/or replacing price tags was also required. All tags came in sheets and needed to be ripped off individually. The worker s duties also involved restocking on products to the sales floor which would require some light lifting, occasionally assembling or disassembling display models, and sorting small parts for sale. There was dusting of display products, assisting customers and re-stocking products within the store. There was also making bags to display items and handling the hold shelves which is where the backorder items are placed when stock arrived. [5] When the computer system malfunctioned, as it did frequently according to the worker, the worker would first write down the information and then later key in this same information when the computer system was up and running. [6] In addition to operating the cash register the worker performed other duties as noted above, in particular the inventory cycle counts which involved the extensive recording of information; handling the hold shelf which also involved extensive writing down and keying in of the information; making bags which involved folding, cutting and stapling; restocking items, which involved lifting and sorting; and cleaning. According to the worker she spent 70% of the day in data entry and 30% in other duties. When the computer system malfunctioned the data entry duties would take up more than 70% of her time. The worker indicated she rarely had breaks from her work and would often be called to the cash register during her lunch break. The

3 Page: 2 Decision No. 1374/14 worker's duties involved repetitive use of the right arm, hand and arm. The worker continued at her regular duties with a brace for a further 14 months after the onset of her pain symptoms. [7] Prior to her employment with the accident employer the worker, claimed to have no pain or any medical condition associated with her right wrist and arm. [8] The worker's symptoms began in early 2010 after the computer system started to malfunction frequently and the work duties involved her right hand in duties that were more repetitive. The worker described the pain as sharp and located at the base of her thumb into her palm and in the wrist area. [9] The worker first sought treatment for the right wrist on May 3, 2010 from a physiotherapist. She continued to receive treatment for the right wrist until August 19, She stopped physiotherapy according to the worker because she was no longer covered by her family s medical benefits once she turned 21. [10] The worker reported her pain symptoms to her family doctor in 2010 but her doctor recommended she obtain a wrist brace and continue with physiotherapy. The worker saw a specialist in January 2011 who referred her for an MRI. [11] The diagnosis of Kienbock s disease in the worker's right wrist was indicated by the radiologist Dr. Chatha in May The diagnosis was confirmed by orthopaedic surgeon Dr. Von Schroeder at the Toronto Western Hospital s Hand Clinic in June The worker subsequently received two surgical procedures. The worker stopped working with the accident employer in July 2011 following confirmation of the diagnosis. [12] As noted above on December 6, 2012, the ARO D. Bollard denied the worker initial entitlement for the right lower arm wrist condition concluding that it was not a direct result of her job duties performed. The worker now appeals to the Tribunal. (iv) Law and Board policy [13] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (WSIA) took effect. Pursuant to sections 112 and 126 of the WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to the WSIA section 126, the Board has identified certain policies as applicable to this appeal. [14] The Legal Services Division of the Board confirmed that the following policy packages, Revision #8, would apply to the subject matter of this appeal: Policy Package #1 - Initial Entitlement Policy Package #300 - Decision-Making/Benefit of Doubt/Merits and Justice [15] The policies will not be duplicated here for practical reasons. As the accident date is in 2010 the WSIA applies. In particular the Panel noted section 13(1) and section 2(1) of the WSIA. The Panel considered the policies in the context of the appropriate legislation in arriving at its decision. (v) Analysis and conclusions [16] The question to be determined in this appeal is whether the demands of the worker's preinjury work duties were a significant contributing factor in making her Kienbock s disease

4 Page: 3 Decision No. 1374/14 symptomatic. The Panel finds that the evidence supporting the worker's condition weighs in the worker's favour and therefore, on a balance of probabilities, the Panel finds that the employment activities of the worker's pre-injury work duties were in fact a significant contributing factor in making the worker's Kienbock s disease symptomatic. The Panel was persuaded in particular by the worker's testimony, the medical evidence and the submissions made by Mr. Yogasundram on July 28, Mr. Yogasundram s submissions were comprehensive and addressed the worker's duties and the onset of her medical condition; the etiology of Kienbock s as understood by the Tribunal; whether entitlement on an aggravation basis is appropriate; the report by Dr. Parachin; whether the worker suffered repeated minor trauma; and finally the contemporaneousness of her symptoms with the performance of her duties. The Panel was persuaded by the submissions from Mr. Yogasundram. (a) The medical evidence [17] The worker's symptoms began in early There is no indication of pain or medical condition or treatment associated with the right wrist and arm prior to her employment. [18] The worker first sought treatment for the right wrist on May 3, 2010 from her physiotherapist from whom she was already receiving treatment for her knee condition. The worker continued to receive right wrist treatments until August 19, 2010 when she stopped because she was no longer covered by her family s medical benefits plan when she turned 21 years old. The worker reported her pain symptoms to her family doctor in The clinical notes have an entry on November 5, 2010 indicating the right wrist pain for several months and that the worker was working as a cashier with the accident employer. There was no specific injury mentioned, but it was noted that the condition was triggered by the repetitive movements in the employment. The MRI of the right wrist carried out in May of 2011 indicates the following: Fragmentation, loss of height and avascular necrosis of the lunate. This may be the primary factor and can be seen with negative ulnar variance. Alternatively, this may be post-traumatic and should be correlated with the patient s prior trauma history. There is some mild degenerative changes along the volar margin of the radiocarpal joint base as a result, with what appears to be a tiny central perforation of the TFCC and a dorsal ganglion cyst at this site. Tendinosis and mild synovitis of the extensor digitorum tendon group with no focal tear. [19] On June 16, 2011 the report from Dr. H. Von Schroeder dictated by Dr. A. E. Kattan indicated evidence of Kienbock s disease with avascular necrosis of the lunate which was probably stage IIIB. As noted the diagnosis of Kienbock s disease was confirmed by the orthopaedic surgeon Dr. Von Schroeder at the Toronto Western Hospital Hand Clinic in June [20] The worker received surgical procedures from Dr. Von Schroeder and the evidence indicates that the worker stopped working at the accident employer in July 2011 following the confirmation of the diagnosis. In addition to the above medical, the Panel reviewed the report from Dr. D. Parachin of the Occupational Health Clinics for Ontario Workers Inc. (OHCOW) dated May 1, 2014.

5 Page: 4 Decision No. 1374/14 (b) Tribunal case law [21] The Tribunal has considered the etiology of Kienbock s disease in a number of decisions over the years. Mr. Yogasundram referenced a number of those decisions, in particular he noted Decision No. 773/92 and subsequent decisions including Decision Nos. 13/95, 1206/00, 3136/01, 2008/10, 2008/10R, 2008/10R2 and 1815/04. [22] The Panel in Decision No. 773/92 relied on the expert opinion of the Tribunal s Medical Assessor Dr. V. Bowen, a specialist in hand disorders in coming to its decision awarding entitlement for Kienbock s disease. [23] The Panel notes that in producing his report Dr. Bowen also consulted with Dr. D. Lichtman, the author of a book he considered the most important single text on the wrist, and stated that there were a number of factors thought to put the lunate at risk of Kienbock s disease. Dr. Bowen named three such factors. The first is that there needs to be a specific type of blood supply, and the second is that there needs to be a specific anatomical configuration involving the lunate. These are both pre-existing congenital factors. The third factor named, however, is extrinsic: some form of trauma needs to be superimposed for the condition to develop. Dr. Bowen then went on to state that while the role of repeated minor trauma is less well understood, it can be associated with the development of Kienbock s disease and indeed may even be involved in the majority of cases. He also stated, in respect of repeated minor trauma, that there is no way to measure either the amount of trauma necessary to produce Kienbock s disease or the amount of repeated minor trauma generated by the job. Dr. Bowen went on to state that the only evidence in that particular case, of the amounts of trauma and repetition involved was described in the report by a doctor at an occupational health clinic and this evidence suggested there was ample repeated minor trauma in the job. In Dr. Bowen s opinion the repeated minor trauma in that particular case was related to the development of Kienbock s disease. Dr. Bowen concluded that based on the evidence the worker in all probability had an underlying susceptibility to Kienbock s disease that was aggravated and made symptomatic by the nature of her work. [24] The Panel notes that in Decision No. 773/92, Dr. Bowen reported that there was no way to measure the amount of trauma required to produce Kienbock s disease and no way to measure how much trauma was sustained by the worker in that case. He also stated that the Tribunal would need to decide if the particular job at the accident employer produced enough repeated minor trauma to produce Kienbock s disease. [25] Dr. Bowen in Decision No. 13/95 indicated no one could really answer what is meant by minor trauma except to say that the term is used in situations where it is felt that a limb has been subjected to some degree of injury by an excess of activity that falls short of the level of injury caused by a single violent event. [26] The Panel notes that the facts in Decision No. 773/92 involves a worker with very similar occupational demands as the worker in the instant case. The worker in that case was employed in the dietary office of a hospital and was required to count menu items and punch in patientrequested items into a keypunch machine. She also had to write out manual items by hand, as well as pickup patient food trays, perform clerical duties, answer telephones and take messages. Entitlement was granted in that decision.

6 Page: 5 Decision No. 1374/14 [27] In Decision No. 3136/01 which again relied on the opinion from Dr. Bowen, the Vice- Chair found that the activity of making a twisting motion with the wrist every two or three minutes did meet the standard of a limb being subjected to some degree of injury by an excess of activity falling short of the level of injury caused by a single violent event. The Vice-Chair granted entitlement noting that the usual cause of Kienbock s disease includes repeated minor trauma in a susceptible individual. [28] Mr. Yogasundram submitted that the physical activity of the worker's work duties are comparable to the fact situations in Decision Nos.773/92 and 3136/01. Mr. Yogasundram submitted that in light of the worker's testimony describing her workplace duties and the medical evidence, including the reporting from Dr. Parachin, it is submitted that the evidence established that the demands of the worker s duties produce repeated minor trauma sufficient to trigger the development of the worker's Kienbock s disease. Mr. Yogasundram submitted that the fact situation in the present appeal can be distinguished from that of Tribunal decision whose award of entitlement for Kienbock s disease was reversed on reconsideration. He noted however that Decision No. 2008/10 made approving reference to the discussion on etiology in Decision No. 773/92 in awarding the worker entitlement for Kienbock s disease. Decision No. 2008/10 was successfully reconsidered in Decision No. 2008/10R and 2008/10R2. In overturning the original decision however, Mr. Yogasundram submitted the reconsideration Vice-Chair again endorsed the etiology of Kienbock s disease as described by Dr. Bowen in Decision No. 773/92. (c) Conclusions [29] It is clear that Kienbock s disease is not in Dr. Bowen s view a congenital condition that becomes symptomatic in the absence of trauma. Trauma is a necessary element in the doctor s view. The Panel is satisfied that there is no evidence that the worker sustained trauma to the right wrist prior to the onset of her symptoms. There is no evidence to suggest that she would have become symptomatic even had she not performed work duties with the accident employer. The Panel is satisfied that the evidence establishes that the demands of the worker's duties produced repeated minor trauma sufficient to trigger the development of her Kienbock s disease. The Panel is satisfied that initial entitlement should be granted for a right lower arm and wrist condition claimed to be related to the worker's employment duties. The Panel is satisfied that while the worker may have had susceptibility for Kienbock s disease, she did not have a symptomatic pre-existing condition or any pre-existing impairment in her right hand or wrist. Mr. Yogasundram submitted that in this situation the application of the thin skull principle is appropriate. The Panel accepts this assertion. The Panel is satisfied that the worker did not have pre-existing impairment and therefore initial entitlement is not made on the basis of an aggravation. The worker has entitlement for Kienbock s disease as a result of her work duties. As noted, a person with Kienbock s disease has a congenital susceptibility for the disease, but the condition requires the superimposition of trauma for its development. The Panel is satisfied that the activity demands of the worker's work were a significant contributing factor. The Panel finds that the evidence established that the demands of the worker's duties produce repeated minor trauma sufficient to trigger the development of her Kienbock s disease. [30] In summary, the evidence in support for initial entitlement for the worker's right lower arm and wrist condition weighs decisively in the worker's favour. The worker, therefore, is entitled to initial entitlement for her right lower arm and wrist condition related to her regular employment duties with the accident employer.

7 Page: 6 Decision No. 1374/14 DISPOSITION [31] The worker's appeal is granted. The worker has initial entitlement for her right lower arm and wrist condition related to her regular employment duties with the accident employer. DATED: October 23, 2014 SIGNED: V. Marafioti, E. Tracey, J.A. Crocker