WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2952/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2952/16 BEFORE: M.C. Smith : Vice-Chair B.M. Young : Member Representative of Employers A. Signoroni : Member Representative of Workers HEARING: November 9, 2016 at London Oral DATE OF DECISION: December 6, 2016 NEUTRAL CITATION: 2016 ONWSIAT 3323 DECISION(S) UNDER APPEAL: WSIB ARO decision dated June 10, 2014 APPEARANCES: For the worker: For the employer: Interpreter: Ms. B. Snider, union representative Mr. R. Conlin, lawyer Not applicable 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. 2952/16 REASONS (i) Introduction [1] The worker appeals the decision of Appeals Resolution Officer (ARO) D. Mosser, dated June 10, The worker was represented by Ms. Brenda Snider, a union representative. The employer was represented by Mr. Ryan Conlin, a lawyer. Also in attendance were the employer s Human Resources manager and Ms. LJ, a non-participating observer. Oral evidence was heard from the worker. Submissions were made by Ms. Snider and Mr. Conlin. (ii) The issue [2] The worker is seeking initial entitlement for the left shoulder, claimed to be related to the work duties of a Personal Support Worker (PSW). (iii) Background [3] This now 50-year-old Personal Support Worker (PSW) began working for the accident employer in On June 18, 2012, she attended her family doctor for neck and left shoulder pain, which had started 3 months earlier. The worker attributed the pain to the repetitive movement of lifting patients. The doctor made the diagnosis of left shoulder strain/bursitis/tendonitis, with possible neck C6 radiculitis. He provided restrictions of no lifting over 10 pounds, no repetitive above shoulder work and no repetitive left shoulder movement. [4] The following day -- June 19, the worker informed the employer that she had been experiencing a gradual onset of pain in her left shoulder which she attributed to her work duties as a PSW. [5] On June 28, 2012, the worker provided additional information to the Eligibility Adjudicator (EA) concerning her work duties, and indicated that there had not been a specific incident. The worker told the EA that she had had a previous claim for left shoulder tendonitis 15 years earlier from which she had recovered. [6] The Eligibility Adjudicator denied initial entitlement for a left shoulder condition on the grounds that she was unable to establish that the condition was attributable to the worker s job duties: On June 19, 2012 you had reported to your employer that you had begun to experience pain in your left shoulder. You had attributed this to your work duties that include pushing wheelchairs, feeding, moving patients in bed, and other duties that help support patients. You had been seeing your chiropractor and then followed up with your doctor. Your doctor has diagnosed you with a possible repetitive strain injury (RSI), left shoulder sprain or radicular pain radiating from an area of your spine. You have been booked for further testing including x-rays, ultrasound, and an MRI. You have not recalled a specific incident at work. You have not lost any time from work. In order to establish entitlement to benefits in your case, I must be able to establish a connection between your work duties and your condition. To do this I look at facts surrounding the onset of your pain, what you attribute the cause to, dates of reporting and medical attention, and the diagnosis. In your case, your doctor noted a few possible diagnoses including an RSI to the left shoulder, strain or radicular pain from a spine condition. Unfortunately, I am unable to establish that the underlying cause of your condition has been caused by your work duties.

3 Page: 2 Decision No. 2952/16 RSI's are caused by forceful repetitive motions for prolonged periods of time. While you have an element of repetition in your job, this repetition has high variance in that you are moving your shoulders in different ways, at different times, and with different tasks. In other words, you are not performing the same activity at a maintained force. Unfortunately I cannot allow your claim for an RSI. You have also been diagnosed with a possible left shoulder strain. Strains can be caused by specific events, which is not consistent with your incident history, or by prolonged repetitive movement of the muscles/tendons. As above, the repetition in your job is not such that requires you to maintain the same activity with sustained force. Furthermore, you have had no recent job changes that could result in an unaccustomed strain to your left shoulder. Your doctor has also noted possible radicular pain in your left shoulder that could be a direct result of a condition of your spine. Normally, radicular pain is associated with pinched nerves. Pinched nerves can be caused by herniated disc, arthritis, spinal stenosis or a sudden traumatic event. Given not traumatic event has occurred, the other causes of pinched nerves result from the body s aging process. The degeneration of the body cannot be found to be caused by the work that you do. Therefore, I cannot grant entitlement to this area of injury. [7] The EA reconsidered the decision on July 3, 2013, but confirmed the denial of entitlement. [8] On June 10, 2014, the ARO determined that there was a lack of objective medical evidence to support a relationship between the worker s job duties and her left shoulder injury. Consequently, entitlement for the left shoulder was denied. [9] The worker now brings her appeal to the Tribunal. (iv) Relevant law and policy [10] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (WSIA) took effect and applies in this appeal. Pursuant to section 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. The Board has identified certain policies applicable to this appeal and we have considered them as necessary. (v) The worker s testimony [11] At the hearing the worker provided the following testimony: She is left hand dominant. In 1999 she had a left shoulder injury while working with another employer. Her job at that time entailed using her arms above shoulder level in order to put clothes on racks. She was granted entitlement by the Board and attended physiotherapy for about 2 months. The injury resolved almost completely, and did not in any way impede her daily activities. She did not take any medication and did not require any work accommodations. In fact, she went on to perform more arduous work such as moving fridges and stoves on a dolly. She left that job in 2004 and went to school to train as a PSW. She started working for the accident employer in On April 1, 2011, she moved into a new home and was involved in painting the new house. She did about half the painting herself, and did not have any trouble with her shoulder.

4 Page: 3 Decision No. 2952/16 In the beginning of May 2012 she began to experience intermittent left shoulder pain when moving residents in the nursing home. She treated the pain with Tylenol, ice and massage. However, the pain continued to worsen, and she attended her family doctor on June 18, On June 19, 2012, she told the employer that she was experiencing left shoulder pain, which she attributed to her duties as a PSW. The worker testified that there are 25 residents in each unit, and there are 3 PSW s on each shift to service the 25 residents. The worker described in detail her duties as a PSW, elaborating on each of the jobs outlined in the Physical Demands Analysis (PDA) included in the Case Record. In particular, she described the mechanics involved in using the two types of lifts that are employed in the nursing home for moving patients. She explained that two workers co-operated in lifting a patient. The worker indicated that her work required her to use many different arm motions repeatedly. She went on disability benefits in September 2014, and in December 2014 was approved for long-term disability benefits. On March 10, 2016, the worker underwent surgery on her left shoulder with Dr. Bigham. Under questioning, the worker acknowledged that the surgery was for arthritis. The worker testified that prior to the surgery she had been unable to raise her left arm without pain. After the surgery she had no problem in raising and lowering her arm. She is currently volunteering at a local hospital doing data entry and is taking an online course in medical office administration. (vi) Medical evidence [12] On June 18, 2012 the worker attended Dr. M. Paiser, her family doctor, for neck and left shoulder pain of three month duration. The doctor completed a Health Professional s Report (Form 8), providing May 2012 as the date of incident. The diagnosis was left shoulder strain/bursitis/tendonitis. In his clinical notes for June 18, 2012 Dr. Paiser noted that the worker had a many year old rotator cuff repetitive strain injury which the worker felt was related to her current work. He noted that the worker had pain in the back of her neck and into both shoulders. [13] On June 29, 2012, the worker attended physiotherapy for left shoulder tendonitis with possible cervical radiculopathy. [14] An ultrasound of the left shoulder on July 6, 2012 revealed a small articular surface partial thickness tear in the supraspinatus tendon. [15] In his clinical notes for July 11, 2012, Dr. Paiser opined no reason as to why this couldn t be WSIB. [16] On May 9, 2013, the worker attended the Occupational Health Clinics for Ontario Inc. (OHCOW). Based upon the worker s description of her job duties, Mr. C. VanderGriendt, an ergonomist, evaluated the risk factors inherent in the physical activities associated with the job.

5 Page: 4 Decision No. 2952/16 The final report, dated May 9, 2013, was written by Dr. M. Pysklywec. The doctor concluded that the worker s job duties as a PSW had played an important role in causing her left shoulder condition: In summary, [the worker] was seen regarding the work-relatedness of her left shoulder condition. Based on the presentation and investigations, she has a left shoulder strain with evidence of a partial supraspinatus tear. Detailed consideration of her job implicates ergonomic risk factors in causing this condition. In particular, repetitive reaching in almost all of her tasks as well as force in a number of the tasks would cause strain of the rotator cuff structures of the shoulders. The cumulative effect of this over years has led to her condition. She has no other risk factors to otherwise explain her condition. For this reason I am left to conclude that her work as a personal support worker played an important role in causing her left shoulder condition. [17] On November 27, 2015 the worker attended Dr. A. Bigham, an orthopedic surgeon, for concerns over her left shoulder. The doctor arranged for the worker to have a cortisone injection in her shoulder. [18] On March 10, 2016, the worker underwent a left distal clavicle excision in the left shoulder. Both the pre- and post- operative diagnoses were left AC joint arthritis. The operative report made no mention of a torn rotator cuff. Dr. Bigham, who performed the surgery, reported that in addition to resecting the clavicle, he also debrided some very mild osteophytes on the undersurface of the acromion. (vii) Analysis [19] The worker has been experiencing left shoulder pain since May An ultrasound of the left shoulder on July 6, 2012 revealed the presence of a small partial thickness tear in the supraspinatus tendon. The worker has attributed her ongoing pain to this rotator cuff tear, and believes that the tear was the result of her repetitive duties as a PSW. [20] On March 10, 2016 the worker had surgery on the left shoulder for arthritis. The surgery entailed a left distal clavicle excision and the debridement of some very mild osteophytes on the undersurface of the acromion. The surgery did not involve repair of the rotator cuff tear. [21] On June 3, 2016 Dr. Paiser sent a report to Ms. Judy Barkhouse, the Long-Term Disability manager for the employer s insurance provider. The doctor reported that the recent shoulder surgery had decreased the worker s neck and shoulder pain. [22] At the hearing, the worker testified that she had been experiencing pain and very limited movement of the left shoulder prior to the surgery, but has been greatly improved since the surgery. She demonstrated the range of motion (ROM) of her shoulder, indicating how much better it was than prior to the surgery. [23] In summary, the surgery for arthritis in 2016 resulted in both a decrease in the worker s shoulder pain as well as an increase in her shoulder mobility. At the hearing the worker demonstrated that she could now move her shoulder freely without pain. Hence, subsequent to the surgery for arthritis, the worker s shoulder condition improved greatly. Given the significant improvement in the worker s condition after the surgery for arthritis, the Panel finds, on a balance of probabilities, that the worker s left shoulder condition was attributable to arthritis, and not to the partial thickness rotator cuff tear that could be seen in the ultrasound.

6 Page: 5 Decision No. 2952/16 [24] In his report of May 9, 2013 Dr. Pysklywec of OHCOW noted that the worker had been diagnosed with a left shoulder strain and partial supraspinatus tear. He opined that this condition could have resulted from the repetitive reaching and force in her job duties. He made no mention of arthritis. Similarly, there is no other medical documentation attributing the worker s left shoulder condition to arthritis. [25] Arthritis is a degenerative condition. In the absence of any medical evidence indicating that the worker s job duties were a significant contributing factor to the development of the arthritis, entitlement for the left shoulder is denied.

7 Page: 6 Decision No. 2952/16 DISPOSITION [26] The appeal is denied. DATED: December 6, 2016 SIGNED: M.C. Smith, B.M. Young, A. Signoroni