WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20090041
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATION: Worker Representative
HEARING DATE: July 30, 2009
ATTENDEES: Worker, Worker Representative, Observer
ISSUES
The worker is objecting to the denial of secondary entitlement for left lateral epidondylitis and the denial of initial and secondary entitlement for left shoulder tendonitis.
HOW THE ISSUES AROSE
The claim was established upon receipt of a Physician’s First Report (form 8) dated July 5, 2000 reporting an onset of right wrist tendonitis as a result of repetitive strain. Nerve conduction studies (NCS) were carried out August 23, 2000 and there was no evidence of dysfunction in the median or ulnar nerves. The worker declined needle electromyography (EMG) studies and therefore the presence of cervical radiculopathy could not be ruled out.
The worker completed a Worker’s Report of Injury (form 6) August 29, 2000 indicating that her job required use of a utility knife to cut material and foam and whenever there was a production increase she experienced pain. She did not complete the section asking what parts of the body were injured. The adjudicator did not obtain a complete history of onset but did obtain a physical demands analysis (PDA) for the cutter/sorter duties. This was reviewed by a Workplace Safety and Insurance Board (WSIB) medical consultant who noted a variety of risk factors and considered the right wrist tendonitis to be a “compatible” condition. The adjudicator accepted this opinion and advised the workplace parties in a decision dated November 2, 2000.
On November 23, 2000 the worker began a course of physiotherapy. The initial working diagnosis was mechanical neck pain with radiation to the right arm. The family physician completed a Physician’s Progress Report (form 26) January 16, 2001 providing a diagnosis of right shoulder/right wrist tendonitis. On March 15, 2001 the adjudicator spoke with the physiotherapist who advised she was treating the right shoulder and neck as it was her opinion that the pain in the wrist and hand was mostly radiating from that region. In light of the additional clinical reporting, the adjudicator extended entitlement to include the neck and right shoulder.
The worker underwent a multi-disciplinary health care assessment at a Regional Evaluation Centre (REC) April 20, 2001. She complained of pain in her fingers, right forearm, right shoulder, and right scapular area. She also reported occasional numbness into her fingers. The clinical impression was right myofascial pain syndrome but a CT scan was ordered to rule out cervical radiculopathy. The CT scan was carried out May 25, 2001 and this demonstrated a herniated disc at the C5-6 level with mild compression of the thecal sac, minimal degenerative disc disease (DDD) and facet joint disease throughout the cervical spine, and an old fracture of the spinous process of C7. The margins of the fracture were well corticated. In a decision dated February 15, 2002 the adjudicator denied entitlement for the disc herniation. The reasons for the denial were not stated in the decision.
Following the accident the worker did not lose any time from work. There is no detailed description of the duties performed; however, on April 30, 2001 the worker telephoned the nurse case manager (NCM) to advise that she was being transferred from doing “custom marking as tolerated with right hand” to doing a “similar activity with left hand only.” The worker had concerns about this as she was already experiencing pain in her left arm.
On May 16, 2001 the worker telephoned the adjudicator to report that on May 14, 2001 she was working in the sorting area when she experienced left arm pain. She asked the employer for help or to be transferred to a different job. Half way through her shift they had not responded and so she left work to seek medical attention. The adjudicator issued the worker a form 6 to complete for the left upper extremity complaints. The worker’s physician provided an updated functional abilities form (FAF) dated May 15, 2001 requesting that restrictions for no overuse of the left hand and arm be added. In a form 26 dated May 15, 2001 he provided a diagnosis of bilateral carpal tunnel syndrome (CTS), right greater than left.
The workplace parties participated in mediation May 22, 2001 facilitated by a WSIB mediator. They agreed the worker would continue to perform her pre-injury duties with no production demands placed on her.
Through the REC, arrangements were also made for the worker to undergo psychological screening and this was carried out July 18, 2001. In the psychologist’s opinion the worker had gone on to develop a chronic pain condition with no evidence of any psychological problems contributing to the condition.
On October 12, 2001 the employer telephoned the adjudicator to advise they were no longer able to accommodate the worker’s restrictions. As such the worker was referred for labour market re-entry (LMR) services.
EMG and NCS were carried out March 8, 2002 and the studies were normal for median and ulnar nerve dysfunction and negative for cervical radiculopathy.
On June 21, 2002 the worker was assessed at the WSIB Upper Limb Specialty Clinic. The clinical impression was “right upper extremity pain” that did not localize to a specific area of tendonitis, nerve entrapment, medial or lateral epicondylitis, deQuervain’s, reflex sympathetic dystrophy, or pseudomotor hyperactivity. Examination of the left upper extremity revealed normal neurological examination and range of motion and the specialist did not see evidence of “overuse” in the left arm; however, he cautioned that this would have to be carefully monitored. He recommended she avoid jobs that involve very heavy and repetitive use of the left upper extremity. He also recommended psychological counselling to help the worker cope with her pain and an occupational therapy assessment for activities of daily living (ADL) adaptations.
On July 22, 2002 the worker’s physician provided a prescription for physiotherapy for “tendonitis left shoulder and elbow due to overuse.”
From July 6, 2002 to September 6, 2002 the worker attended left hand dominance training. At the time of discharge she had shown improvements in all of her functional measure tests with the exception of the Jamar grip strength testing. The attending occupational therapist also noted concerns with the physical requirements of operating the worker’s standard transmission vehicle as on measurement rotation of the steering wheel requirement 21 to 23 pounds of force. An assessment regarding vehicle modifications was suggested.
In November 2002 the worker underwent a psychological assessment for pain management services. The psychologist found the worker to have a pain disorder with Type A personality traits affecting the medical condition.
On February 7, 2003 the physician completed a Physician’s Special Report (form 43) indicating the worker was exhibiting symptoms of bilateral CTS and ulnar neuritis. This was not confirmed by EMG and NCS.
On June 3, 2003 the worker’s physician provided a prescription for cortisone through Iontophoresis. The areas listed on the prescription were right shoulder, right elbow, and left shoulder.
On a form 26 dated July 4, 2003 the physician provided a diagnosis of bilateral tennis elbow and right shoulder capsulitis.
The worker was discharged from the pain management program November 13, 2003. Milestones achieved were a discontinuation of all narcotics and decrease in stress levels; however, she reported no significant change in her pain levels.
The first decision issued regarding the left upper extremity is dated January 30, 2004. In that decision secondary entitlement for left lateral epicondylitis was denied as there was insufficient evidence of overcompensation arising out of the LMR activities.
The worker secured the services of the Office of the Worker Adviser (OWA). The representative obtained additional medical evidence and forwarded this to the claim for reconsideration. The adjudicator noted a new diagnosis of left shoulder tendonitis. In the decision dated October 8, 2008 the adjudicator concluded that there was no evidence of personal injury to the left shoulder to support initial entitlement and insufficient evidence of overcompensation arising out of the LMR activities to support secondary entitlement.
The issues of initial and secondary entitlement are now before the appeals resolution officer (ARO) for further consideration.
AUTHORITY REFERENCES
Policy Document 11-01-01, Adjudicative Process
Policy Document 11-01-14, Reconsiderations of Decisions
Policy Document 15-02-01, Definition of an Accident
Policy Document 15-05-01, Resulting from Work-Related Disability
ASSESSMENT OF THE EVIDENCE
A hearing was arranged to obtain additional information from the worker. As the employer was not participating, the additional information was obtained through informal questioning as opposed to sworn testimony.
Pre-injury Duties
Although a PDA of the worker’s pre-injury duties were obtained, nowhere in the file is there a description of the actual duties.
The worker began employment with the accident employer January 15, 1998. In the spring of 1999 she was transferred to cutting and sorting the custom goalie pads. These pads are, as the title suggests, custom made to order for goalies internationally and all the materials for the pad are cut by hand (as opposed to machine). She and another individual were assigned to the custom goalie pads but were still part of a larger production team.
The worker’s scheduled hours of work were Monday to Friday, 40 hours per week; however, the employer had an “incentive” program that gave production teams the Friday off work if they met the production standards set for the week by the end of their shift Thursday. The worker’s team “frequently” achieved the Friday-off incentive bonus.
Aside from retrieving the actual materials, the worker’s job involved measuring, cutting, marking, and sorting the materials for the construction of the custom goalie pads. Her job did not involve constructing/sewing the pads as suggested by the WSIB medical consultant in memo #40 dated September 11, 2001. It could take anywhere from 1½ hours to one half day to complete her end of the process for one custom goalie pad. She performed this job with one other person. When they were finished their orders, they were required to help the rest of the production team.
The worker measured, cut, and marked the materials at a workstation that reached her upper waist level. I should mention this worker is petite, measuring 5’3” and weighing 110 pounds at the time of the April 20, 2001 REC assessment. When cutting the materials she held down a template with her left hand and cut with her right hand. Significant pressure had to be used to keep the template in place and she would have to reach forward with body and right arm to cut around it. The dimensions and materials varied, depending on the size of the goalie pad and custom requirements.
I reviewed the PDA on file and after observing the worker demonstrate how she would perform the cutting I note that her specific physical demands also include neck side bending, raised shoulder between 45 and 90 degrees, and arm across midline.
Post-accident Duties
There is no job description of the worker’s post-accident duties. Memo #16 dated April 30, 2001 states, in part,
“Today worker reports her supervisor discussed changes to her duties on April 27/01. Starting April 30—worker would be changing from doing custom marking as tolerated with right hand. Change today to doing a similar activity with left hand only. Worker is already feeling left arm pain.”
At the hearing the worker clarified that she was doing her pre-injury duties but was “self-adjusting” by alternating cutting with her right hand (and holding the template with her left) and vice versa. She does recall cutting herself on occasion when cutting around the template using her left hand. She had concerns that if she was forced to use only her left hand she would develop more severe problems in her left upper extremity. Sorting was one aspect of the pre-injury duties.
Memo #21 dated May 16, 2001 states, in part,
“I tried to get a statement as to what she was doing and she said it was repetitive sorting of pieces, but I could not get a production amount as she kept changing the number of pads they had to make. She stated that she likes to work in the custom area, she was doing great at the beginning of the week in this area. Then they moved her to the stock area which she states has a prod rate of 18 per day, however as we continued talking this number changed so I was unclear of the production rate.
She stated she tries to alternate her hand functions and this has resulted in L arm problems. She also stated she was lifting heavy boxes but she didn’t know the weight and I didn’t find out how many times a day she was lifting.”
In my interpretation of this memo it does not appear that the adjudicator reviewed the PDA or was aware of the job objective and design of the job. This would account for her assuming the worker was involved in an assembly line process. I must question why she did not make arrangements for a WSIB ergonomist to review the duties.
Memo #26 dated May 23, 2001 documents the outcome of mediation May 22, 2001 and states,
“The following the agreement reached by the workplace parties:
(Worker) will continue to perform her pre injury work duties with no production demands placed on her.
The supervisor will arrange for a team meeting in order to discuss (worker’s) return to work precautions and limitations. (Worker) will, of course be at this meeting”
The worker clarified that “no production demands” meant that she “self-paced” which meant that instead of taking 1½ hours to half a day to complete her process, it took her about an hour longer. However, she still completed all the physical demands of the job.
Memo #30 dated June 28, 2001 states, in part,
“Continues to work full time at modified work—difficult to find suitable jobs within restrictions but she is able to rotate duties and A/E is open to accommodating.”
Memo #37 dated September 6, 2001 states, in part,
“New FAF completed on Aug 16/01. Worker to discuss with A/E on Sept 5/01 as A/E was N/A. Worker indicates she doubts A/E will be able to provide work within restrictions. Worker wants to work but is having serious concerns about her abilities to continue to work at the duties as required by A/E.”
The worker testified that she initially began experiencing discomfort in her neck and across her shoulders a few months after working for this employer. She attributed this to inexperience in this type of work. Although she had mentioned the pain and discomfort to her physician it was not until July 2000 that he submitted the form 8. At that time the primary symptoms were in her right wrist and this is the area her physician focused on.
As she continued working on the “self-adjusted” duties she developed pain in her entire right upper extremity. It was difficult for her to identify whether the pain was coming from the wrist and extending up to the arm and shoulder or if the pain was in her neck and extending down to her wrist and hand. As the condition of her right upper extremity deteriorated she relied more on her left upper extremity at work and at home. The more she used the left arm and more she experienced problems. As with the right side the worker was unsure as to whether she had an injury to her left wrist with radiation up to her shoulder and neck or an injury to her neck with radiation through the shoulder and down to the hand. One aspect of her life that was particularly problematic was driving. At the time of the accident she owned a Neon Espresso with a high performance engine. This car had a manual transmission and no power steering. It became increasingly more difficult to shift gears with her right hand and so she adapted by holding the bottom of the steering wheel with her right hand and reaching over with her left hand to shift gears. The occupational therapist involved in the left hand dominance training assessed this problem and in the September 6, 2002 discharge report states,
“Of major concern for this client, is her ability to operate her vehicle using only her left upper extremity. An observation of her driving skills was completed on September 6, 2002, as (the worker) reporting that driving significantly aggravates her pain. (The worker’s) vehicle is an older model without power steering. The amount of force required to turn the vehicle was grossly measured using a Chattilon gauge. It is estimated that 21.0 lbs of force, on average, is required for a rotation of the steering wheel to turn the vehicle, with a peak measurement of 23.0 lbs. It was also noted that she must remove her hand from the steering wheel to operate primary controls in the vehicle. An assessment regarding vehicle modifications may be warranted for this client.”
The worker clarified that between her last day worked and when she started her LMR plan the symptoms in her left upper extremity improved. By the time she started the LMR plan she was already trying to use her left hand for writing notes and the left hand dominance training added additional stresses.
Diagnoses
One of the problems with this claim is the various and changing diagnoses. Permanent impairment has been accepted for “right shoulder capsulitis/tendonitis” and “right elbow and right wrist tendonitis”. In my assessment of the clinical evidence the worker’s symptoms are secondary to a myofascial pain syndrome of the upper extremities bilaterally and aggravation of the pre-existing disc herniation at the C5-6 level.
Entitlement
I have carefully considered all of the relevant evidence. There are significant risk factors in the worker’s pre-injury duties for injury to the entire upper extremities and neck. Post-accident the worker essentially performed the same duties, albeit at a slightly slower pace, and relying on her left upper extremity. She also put added physical stress on her left upper extremity while shifting gears in her vehicle and performing her ADL. Given the weight of the evidence, I conclude that the myofascial pain syndrome left upper extremity arose secondary to the work-related injuries accepted under this claim.
CONCLUSION
I conclude that:
The worker developed a myofascial pain syndrome of the right upper extremity.
The worker developed a myofascial pain syndrome of the left upper extremity and this developed secondary to the work-related injuries.
The physical demands of the pre-injury duties aggravated the pre-existing disc herniation at the C5-6 disc level.
All of these conditions have resulted in permanent impairment.
The worker’s objection is allowed.
DATED this 20^th^ day of August, 2009.
L. Lum Appeals Resolution Officer Appeals Branch