WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090029 OBJECTION BY: Worker EMPLOYER: Participating REPRESENTATIVES: Worker Representative, Employer Representative HEARING DATE: June 18, 2009 ATTENDEES: Worker, Worker Representative, Employer, Employer Representative, Observer
ISSUE
The issue in dispute was the duration of the right arm strain.
HOW THE ISSUE ARISES
This claim was established on the basis of an Employer’s Report of Injury/Disease (Form 7) advising that on August 31, 2006 the 53 year old production worker sustained an injury to his right arm when he was pulling a pump cart. The Worker’s Report of Injury/Disease (Form 6) confirmed the date of injury and indicated that the area of injury was from the fingers to the right shoulder.
The worker’s family doctor submitted a Health Professional’s First Report (Form 8) for treatment administered on August 31, 2006 noting the incident history of pulling a heavy trolley when the worker felt a sudden pain in his right elbow 24 hours later.
In adjudicating this claim, it was acknowledged that there was underlying unassociated condition of carpal tunnel syndrome (CTS) which was regularly referenced in the medical record of the period.
However, in adjudicating the worker’s ongoing entitlement, and noting the medical records conclusion with the Canadian Back Institute’s (CBI) report of September 6, 2007, the worker was advised in the decision letter of December 5, 2006 that entitlement was extended for a right arm strain injury only.
The decision letter of May 12, 2008 considered the duration of this injury and the worker was advised that though it had been recommended that his employment be modified to accommodate a bilateral hand condition, the medical record had established that no such hand condition identified as carpal tunnel syndrome (CTS), was relatable to the incident history dating this claim. Subsequently in the decision letter of August 14, 2008, the worker was advised that on the basis of a review of the medical record, it is considered that the injury arising on August 31, 2006 had resolved as of September 6, 2007 on the basis of the evidence of the physiotherapy discharge report.
The worker has objected to the decision limiting his entitlement to loss of earnings (LOE) benefits to September 6, 2007 and the issue is before the Appeals Branch.
AUTHORITY
Operational Policy Manual (OPM) document(s):
- 18-03-02 – Payment of LOE Benefits
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
At the hearing, the worker provided testimony under oath.
He noted that on August 31, 2006 he was working on nights and sustained his right arm injury when pulling on a pump truck. He did not experience an onset of pain until the following day and lost no time from work. It was his submission however that on the basis of the medical authorization from his family doctor he was to be restricted from working overtime hours on the weekend or doing repetitive work.
With respect to treatment beyond assessments by his family doctor, the worker confirmed that on his own he sought some acupuncture treatment in 2007 and also underwent physiotherapy at the CBI.
He stated that while continuing with his regular employment on a reduced work schedule, he would experience swelling in his right palm and would be unable to make a fist. He stated that the pain would come and go in his arm and that he would also experience swelling. It was evident from his testimony, that the focus of his ongoing complaint was the swelling in the right palm. However, he never clearly indicated that this condition impaired him from performing his work at any time. Near the end of 2007 or the beginning of 2008 he was moved to another line which in his submission was no lighter than the one previously worked on. He states that any repetitive work aggravates his ongoing problems.
With respect to his ongoing employment, he was put on lay off on December 18, 2008 and since that time has applied for manufacturing and general labour work through online applications and going door-to-door with his résumés. He states that he has had one source of interest at a courier company. This was for part-time work and their application required him to respond to the question of whether he could lift 70 pounds which he denied being able to do. He was therefore not considered for the position in his submission.
In her closing submissions, the worker's representative notes that the worker has been accepted as having sustained a strain of the right arm in August 2006 and that the documentation of the employment done by the worker from that point to his lay off in December 2008 confirms that he was required to perform repetitive work with the upper extremity in what amounted to be his pre-injury regular duty but for the absence of mandatory overtime. She refers the decision maker to the medical record including the family doctor’s Functional Abilities Form (FAF) of July 2007 which recommends that the worker pursue no overtime in that he requires a 48 hour period to recover from the impact of working repetitively with his right arm and hands. She further notes that the physiotherapist’s report of September 6, 2007 from the Canadian Back Institute (CBI) well noting that the worker’s complaints were resolved offered no clinical data to support this submission. The medical record continues with the Functional Abilities Form (FAF) of April 7, 2008 and to restrict repetitive movement of the worker’s upper extremities including no pushing and pulling which the physical demands confirm is a requirement of the workers ongoing employment at that time. In her conclusion, representative notes that worker’s strain to his right arm did not resolve as the Workplace Safety and Insurance Board (WSIB) has maintained and that it is reasonable to conclude on the basis of his ongoing repetitive employment that the impairment also continued.
In considering the representative’s argument, I find that the logic that the worker continuing at repetitive employment means that he continued to have an impairment associated with repetitive work, is unconvincing. It is acknowledged by all parties that the worker has a carpal tunnel syndrome (CTS) condition in addition to the onset of a right arm strain in August 2006. The medical record contained in the claim file clearly documents the worker’s ongoing CTS conditions and the reference in the Functional Abilities Form (FAF) of April 2008 and the associated Health Professional’s First Report (Form 8) are clearly in respect of this condition. Nowhere is the right arm strain identified as being a concern to the worker’s family doctor but for the most recent submission dated August 18, 2008 in which it is stated that the worker has a permanent impairment of his right upper limb. This statement however is not supported by any previous submission from the family doctor. In the same letter of August 18, 2008, the family doctor references the worker’s condition as being a right upper limb tendonitis and CTS. This is not the condition for which entitlement was extended. Additionally, no clinical evidence of an ongoing impairment associated with a strain or even with a tendonitis has been submitted to the claim file. In fact, the worker’s ability to pursue regular employment but for some mandatory overtime enhances my view that he was able to return to his pre-injury employment no later than the CBI’s discharge report of September 6, 2007.
On the basis of the evidence before me therefore, I find that the worker’s work related impairment under this claim was appropriately determined by the operating unit.
CONCLUSION
The worker has no additional entitlement with respect to the injury in this claim.
The worker’s objection is denied.
DATED June 23, 2009
B. J. Martlin Appeals Resolution Officer Appeals Branch