WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090004
OBJECTION BY: Worker
EMPLOYER: Participating
REPRESENTATIVES: Worker, Employer
HEARING DATE: March 25, 2009
ATTENDEES: Worker, Worker Representative, Employer, Employer Representative and Observer from employer
ISSUE
The worker’s representative, on behalf of the worker, has appealed the claims adjudicator’s decision dated March 25, 2008. The claims adjudicator has ruled that there is insufficient evidence on record to support the granting of initial entitlement.
HOW THE ISSUE ARISES
A claim has been established with an accident date of January 24, 2008 for this tool setter. The worker claimed a gradual onset of pain in the right shoulder, neck and hand and related it to his job duties in general and to the cold climate in his work area.
He was diagnosed with myofacial strain of the right shoulder and treatment was provided on a conservative basis to include physiotherapy.
The clinical documentation on record has suggested the worker has experienced a neck and shoulder injury as a result of a jerk of a wrench and a sudden movement in January of 2008.
The claims adjudicator has reviewed the evidence on record and concluded that there is insufficient evidence available to support the granting of initial entitlement.
The worker’s representative, on behalf of the worker, has appealed this decision and this issue is now before the appeals resolution officer for further consideration.
AUTHORITY
The appeals resolution officer will consider the worker’s representative’s appeal in light of Operational Policy Documents:
11-01-01 - Adjudicative Process
11-01-02 - Decision-Making
11-01-03 - Merits and Justice
ASSESSMENT OF THE EVIDENCE
The worker provided oral testimony under oath. The worker representative made oral submissions on behalf of the worker. The employer representative made oral submissions on behalf of the employer.
The worker confirmed that he initially immigrated to Canada in 1990 to the Montreal area where he spent two years subsequently moving to Ottawa, then London and exiting the country to live in Israel for approximately eight years.
The worker confirms he has a diploma in library science. The worker returned to Canada and began his employment with the employer in 2004.
He states he continued to work with the employer until the accident date, initially beginning as a machine operator and bidding on a tool setter’s job.
He states he began his employment as a tool setter in approximately September 2007 and normally worked straight afternoons, Monday to Friday with an occasional overtime shift on Saturday.
He confirms that two people were employed in the tool crib during the afternoon shifts.
He states he required training on how to repair the broken tools for the machine operators. He states that his main focus was to train on how the perform the tool setting job and he spent the majority of his time learning that over the period of September 2007 to January 2008.
He confirmed the physical demands analysis and job description as outlined on the record indicating that the machine operator would place a broken part on a carton which he would collect. He states once they were repaired, he would return them to the machine operators for further use.
He states that on occasion, it was very difficult to loosen the bolts and screws which held the tools together and he would occasionally be required to request assistance in loosening the fasteners. He states that there was a torsion bar available to make the break-down and repair of the tools easier. He states occasionally the wrench or screwdrivers would slip off the tools, causing a jolt to his upper body. He confirms he had to push or pull to loosen or tighten the fasteners.
He states on a normal day he would fix approximately 20 tools per day but this would increase to 30 to 40 per day and on a slow day, he estimates approximately 12 to 15.
He states under normal circumstances, one hour a day would be spent on retooling of the actual parts.
He also confirms occasionally they would have a rush repair of a tool for a particular machine operator which would take precedence over all of the duties.
He described for the hearing participants the nature of the onset of the disabilities on January 24, 2008. He states it began at approximately 5:00 a.m. and the power had gone off as a result of an electrical problem in the tool grid and the area was very cold. He confirms he was setting a tool at the time and was not really aware of what happened to cause the onset of difficulties. He does indicate it was a very busy day and he needed to go back to work but took it easy. He states he was in pain everywhere and he was a very “hot.”
He confirms he did not report any injury or difficulties on the day in question and reported the nature of the onset of his difficulties to his supervisor the following day. He states he reported to the supervisor that he was sick and was not able to recall any specific injury occurring to the shoulder and neck.
He states he did not feel good and that “something was inside his body”. He states approximately two to three days later, he went to the urgent care clinic due to pain in the neck, shoulder and numbness in the hand and fingers.
Subsequent to January 24, he continued to perform his regular occupation and eventually reported his difficulties to the company nurse and was advised of the nature of the onset of his difficulties and was subsequently referred to the company doctor.
He states that effective February 5, 2008, modified work was provided and he did not have any difficulty performing the work assigned to him.
He does state that he had difficulties asking people for assistance as he did not feel it was fair to them to perform his duties.
The worker denied any pre‑existing problems or any other events which he can relate the onset of difficulties to. In essence, the worker believes that his right shoulder condition is related to his work duties in general as he did not have any other reason for the onset of these difficulties.
He did confirm that the machine operator’s position was more physically demanding due to the repetitive nature of the occupation. He does confirm that the activities in the tool crib are more varied, precise and require more strength.
He does confirm that he was properly trained by the employer in the break-down and building of parts and believes in approximately six to eight out of 30 parts would be difficult to break down.
The worker confirms he is approximately 5 foot 6 inches in height and about 120 to 130 pounds in weight.
The worker representative submits that the evidence on record does support that the worker properly reported the onset of the difficulties to his employer the following day. She notes that notwithstanding the incomplete history given by the worker, the balance of evidence does suggest that the worker experienced an occupational injury arising out of and occurring in the course of his employment on January 24, 2008.
She notes that the weights of the parts the worker was handling are between 20 and 35 pounds and the force required to loosen or tighten the fasters is approximately 52 pounds. She suggested as a result of the weights involved, the mechanism of injury does exist in which to relate the onset of the worker’s shoulder and neck difficulties.
She also notes the physical demands analysis and suggests that in light of the worker’s testimony, the majority of his work duties between September 2007 and January 2008 were performed as retool and therefore the worker was not exposed to the varied tasks outlined in the physical demands analysis.
She submits that the clinical documentation on record does provide corroborative evidence confirming the existence of an injury taking place. She notes the report from the doctor does again provide corroborative evidence that the onset of the worker’s difficulty occurred as a result of the retooling process and that the worker was presenting with a neck injury suggesting a C6-7 radiculopathy.
She notes the doctor reviewed the physical nature of the worker’s job as described by the worker and does suggest that the worker’s activities at work do present as a significant risk factor for the development of the diagnosed condition.
The employer representative submits that the tool crib position is frequently used as a modified position for other workers in the plant. He submits that the physical demands analysis does not support compatibility between the diagnosed condition and the work duties performed by the worker. He submits that the worker failed to properly report any accident history to the employer and notes that the worker is not able to provide any specific mechanism of injury within his employment.
He also notes the clinical evidence on record suggesting that the worker presents with an underlying degenerative disc disease and submits that the worker’s testimony is only looking for something to blame the onset of his difficulties to.
He notes that the worker has been provided with only passive treatment which would not suggest any significant injury occurring as a result of any work process. He also submits that the modified work offered by the accident employer does fall well within the worker’s restrictions and that the balance of evidence does not fall in favour of the worker and submits that the claims adjudicator’s decision to deny initial entitlement should be upheld.
The worker provided testimony surrounding the nature of the onset of his difficulties on January 24, 2008. Frequently the worker was not able to provide any justifiable cause of the onset of the difficulties and described a more generalized feeling of unwellness on January 24, 2008.
The worker began his employment in the tool crib area in September 2007 and did attempt to learn the tool resetting position as best as he was able.
Of particular note is the stature of the worker being of relatively short stature and a slight build which would on occasion cause him some difficulty loosening the fasteners on the tools. Once again the worker was not able to specifically identify any activity or instance which to relate the onset of the diagnosed condition and is now relating the onset of difficulties to his occupation in general.
The worker would have been exposed to various tasks of a non-repetitive nature and one would expect, given the force as described by the worker, a specific injury to take place as a result of the significant force required to loosen the fasteners on the tools.
The evidence on record, in conjunction with the testimony significantly lacks any specific incident or onset in which to relate the diagnosed condition to. The worker repeatedly indicated that he felt ill and that something was inside his body on January 24, 2008, which does not readily suggest an occupational injury taking place in the workplace or as a result of the worker’s job duties.
The worker also indicated in his testimony that he could think of no other cause for his condition other than his employment in the tool crib area, yet this does not supply sufficient evidence in which to provide or conclude that a causative effect in the worker’s employment has produced the diagnosed impairment.
CONCLUSION
Having reviewed the evidence on record, heard the testimony provided by the worker and considered the submissions made by the representative, it is the judgement of the appeals resolution officer that;
There is insufficient evidence available to support a work‑related injury arising out of and occurring in the course of the worker’s employment either on a specific incident basis or on a disablement nature.
The Appeals Resolution Officer is not satisfied that the balance of evidence falls in favour of the worker or even equally in weight in which to extend the benefit of doubt to the worker.
There is insufficient evidence to support an occupational injury arising out of or occurring in the course of the worker’s employment on January 24, 2008.
The worker’s appeal is denied.
DATED May 26, 2009
N. J. Shruiff
Appeals Resolution Officer
Appeals Branch