WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090059
OBJECTION BY: Worker
WORKER:
EMPLOYER: (did not participate)
HEARING LOCATION:
DATE: September 25, 2009
ATTENDEES:
Worker:
Worker Representative:
ISSUE
The worker objects to the decision of April 19, 2006 to deny entitlement to a January 2006 recurrence and associated benefits.
HOW THE ISSUE ARISES
On October 7, 2003, this now 62 year old worker injured her right shoulder when the wheels jammed on a bakery rack she was moving. At the time of injury, the worker was employed as a part time bakery counter clerk.
X-ray of the shoulder revealed no abnormalities. Ultrasound demonstrated a small to moderate full thickness tear of the right supraspinatus tendon, possible tear of the superior aspect of the biceps tendon, and inflammation of the acromioclavicular (AC) joint, likely related to a pre-existing arthritis condition. Arrangements were made for the worker to undertake physiotherapy.
In March 2004, the worker attended an orthopaedic surgeon, complaining of persistent shoulder discomfort. The surgeon noted the worker’s prior history of rheumatoid arthritis affecting the hands and feet. The ultrasound finding of AC joint inflammation was attributed by the radiologist and the orthopaedic surgeon to the rheumatoid arthritis condition. The surgeon diagnosed the worker’s ongoing complaints as a combination of arthritis and the supraspinatus tendon (rotator cuff) tear. Surgery was recommended.
The worker returned to modified work on May 26, 2004 while she awaited a second surgical opinion. In August 2004, a second surgeon endorsed surgery and, in October 2004, the worker underwent right distal clavicle excision, debridement of the AC joint, acromioplasty, bursectomy, and rotator cuff repair. She returned to physiotherapy in November 2004.
In January 2005, the orthopaedic surgeon cleared the worker to return to light work. Accordingly, the worker began a gradual return to work with the employer at a courtesy desk. On reassessment in April 2005, the surgeon concluded that the worker had a good result from her surgery which allowed her to achieve pre-injury hours of modified work. The worker was found to have a permanent shoulder impairment and, in October 2005, was granted a 9% non-economic loss (NEL) benefit.
The worker was off on vacation from December 4, 2005 to January 3, 2006. On January 3, 2006, the worker claimed that her shoulder pain had increased to such a degree that it disrupted her sleep and caused disability from the courtesy desk job. The family doctor made arrangements for MRI and surgical reassessment. The doctor supported the worker’s claim that the courtesy desk job was not suitable and recommended reassignment to a sedentary clerical position. In May 2006, the orthopaedic surgeon also found positive signs of impingement and endorsed disability from work.
Bone scan showed increased uptake in the AC joint, and X-ray demonstrated extensive degenerative changes in the AC joint. MRI revealed no further tear of the rotator cuff; however, there were erosive changes at the insertion of the supraspinatus tendon. There was no change in the biceps tendon tear, and there was a finding of disruption of the capsule at the teres minor muscle compatible with the original injury. The surgeon found no operable pathology; however, he expressed a willingness to proceed with arthroscopic examination and biceps release if the worker’s condition deteriorated.
The adjudicator, with advice from the WSIB medical consultant, found that any deterioration in the worker’s shoulder condition was related not to the work-related injury, but to progression of the pre-existing rheumatoid arthritis condition. Entitlement to the January 2006 recurrence was denied. The worker has objected further.
AUTHORITY
15-03-01 – Recurrences
18-03-02 – Payment of LOE Benefits
19-02-01 – Overview of Early and Safe Return to Work (ESRTW)
19-02-02 – The Goal of ESRTW and the Roles of the Parties
19-02-03 – Workplace Party Co-operation
19-04-06 – Suitable Employment
EXHIBITS
Exhibit #1 – photographs of the courtesy desk work area
Exhibit #2 – photographs of the bakery work area
Exhibit #3 – a letter dated August 3, 2006 from Dr. D. M. W. Pugh
ASSESSMENT OF THE EVIDENCE
Worker Statement
The worker provided testimony regarding her pre-injury medical condition and pre-accident job. She advised that prior to the workplace accident, she experienced discomfort in her feet and hands due to rheumatoid arthritis. The worker denied any arthritis-related symptoms in any other areas of her body. The worker specified that she had no shoulder symptoms whatsoever prior to the accident. She testified that hand and foot problems did not prevent her from performing any aspect of her bakery clerk job. The job involved: prolonged standing; pulling bakery racks; picking up and shelving trays; lifting, and; moving boxes of frozen dough weighing between 15 and 20 kilograms. The worker referred to Exhibit #2 while describing pre-injury duties.
The worker confirmed the circumstances of her accident, right shoulder injury, and the surgery of October 2004. She confirmed that after her recovery from surgery, she was accommodated by the employer as a courtesy desk clerk. She achieved pre-injury work hours despite difficulties with the job.
The worker provided a description of the various aspects of the courtesy desk job. She stated that the job involved selling lottery tickets, a job that was particularly demanding when prizes were large. The worker noted that lottery ticket information had to be entered on a touch-screen that was located on the counter at eye-level. She was also required to: unload cigarettes from bins; rotate cigarette stock on shelves; reach for cigarettes in cabinets located between floor and overhead levels; move bundles of magazines and newspapers; receive returns of merchandise; rent and receive carpet steam cleaners and associated supplies, and; operate a cash register. The worker noted that the courtesy desk was always busy.
The worker advised that the courtesy desk job involved repetitive use of the right arm and prolonged standing which exacerbated her right shoulder pain, associated neck pain and headaches. Standing caused a pulling sensation in the shoulder which was mitigated only by keeping her hand in her pocket. The worker tried to self-accommodate by using her left upper extremity for certain activities; however, she found that she did not have the dexterity to perform many functions well or fast enough with her non-dominant hand. As a consequence, she was required to use her right arm beyond her abilities.
The worker reported that by September 2005, her shoulder had become so painful that she was required to reduce her hours. During the period September 2005 to December 2005, she worked only one shift per week, the minimum required to maintain her union seniority. The worker booked the month of December 2005 off as vacation because she knew she would not be able to cope with the increased demands of the Christmas season. The worker returned to work the first week of January 2006 but lasted only a few hours before leaving work due to shoulder pain.
The worker stated she was off work from January 2006 to January 2007. She noted that the employer conducted an assessment to determine whether more suitable duties were available; however, she was advised that the courtesy job was the lightest job in the store. The worker denied receiving any offers of alternate work from the employer. She has remained on medical leave and maintains her employment status with the employer.
The worker advised that she conducted independent job search and, in January 2007, secured employment as a part time receptionist with a denturist. She earns minimum wage and works between 24 and 32 hours per week, Monday to Thursday. The job is sedentary and requires no computer work. She answers telephones, writes down appointment information in a book, and wipes down the counter and chair after each patient. She reported no difficulties with the job.
Policy
A recurrence may result from an insignificant new accident, or may arise when there is no new accident. To identify a recurrence, the WSIB must confirm that there is medical compatibility between the original injury or disease and the current condition, or a combination of medical compatibility and continuity. The significance of the new accident must be assessed. If the new accident is significant, then entitlement as a recurrence is not in order.
The goal of the early and safe return to work (ESRTW) process is to return the worker to employment that is suitable, available, and restores the worker’s earnings where possible.
Workers and employers are required to co-operate in the worker’s ESRTW. The Workplace Safety and Insurance Act sets out minimum requirements for workers in the ESRTW process: maintain communication with the employer; assist the employer to identify suitable and available work; and provide the WSIB any information requested regarding return to work. The employer is obliged to offer the worker suitable work that becomes available during the period of re-employment obligation. The worker is obliged to accept offers of suitable employment.
Suitable work is work that: is within the worker’s functional abilities; the worker has, or is able to acquire, the necessary skills to perform; does not pose a health or safety risk to the worker or co-workers; and if possible, restores the worker’s earnings. To evaluate the suitability of employment, it is necessary to consider the worker’s functional abilities, the degree of impairment and prognosis, and the worker’s aptitude for the job’s tasks and duties. Available work is work that exists with the accident employer at the pre-injury worksite, or at a comparable worksite arranged by the employer.
A worker who has a loss of earnings as a result of a work-related injury or disease is entitled to loss of earnings (LOE) benefits. Once found fit for modified work, workers are entitled to full LOE benefits if they co-operate in ESRTW activities and continue to have a loss of earnings.
Assessment
The worker representative referred to the testimony and exhibits in her submission that the courtesy desk job exceeded the worker’s functional abilities. She noted the attending surgeon’s opinion that the increase in shoulder symptoms was injury and job-related. The representative suggested that the specialist’s opinion, in addition to the absence of prior shoulder problems, supports that it was the work-related shoulder injury, not the rheumatoid arthritis condition, that caused disability from work. The representative requested a finding that the job was not suitable and that the worker is entitled to full LOE benefits from January 2006 to January 2007, and partial LOE benefits from January 2007 to age 65.
In order to consider the worker’s request for LOE benefits, it must be determined whether the courtesy desk job was suitable. In making this determination, I reviewed the record and considered the evidence and submissions.
Review of the medical documentation confirms that the pre-existing rheumatoid arthritis condition affected only the hands and feet. There was no indication of shoulder complaints prior to the workplace accident. Since the accident, the worker has experienced continuous right shoulder pain. A NEL benefit recognized the nature and degree of this impairment.
Reports from the orthopaedic surgeon and family doctor support that the worker complained of persistent shoulder pain. In June 2005, the family doctor wrote that the worker was working with difficulty due to this pain. The next available report, a functional abilities form completed by the family doctor and dated January 10, 2006, indicates that the worker was unable to continue at any form of work due to disabling shoulder pain. On February 21, 2008, the family doctor wrote that she had conferred with the attending orthopaedic surgeon and that they had agreed that the worker was not fit for the courtesy desk job.
The worker was examined by the orthopaedic surgeon on January 10, 2006. She complained of pain in the anterior shoulder which radiated into the posterior shoulder and neck. The surgeon noted the following:
This job is performed primarily with her arm at her side although there is some repetition in reaching involved. There is no heavy lifting. She often has to leave work early due to unrelenting shoulder pain…There is little to find on examination. She has excellent motion and fairly good strength. There are positive impingement signs and provocative test for her rotator cuff bring on discomfort…I do not feel Jeanne is able to work given the description of pain and disability…
Medical investigations initiated by the surgeon revealed: increased uptake in the AC joint; erosive changes at the insertion of the supraspinatus tendon; no change in the biceps tendon tear, and; disruption of the capsule at the teres minor muscle. The tendon and muscle injuries are clearly the result of the workplace injury. The AC joint degeneration is associated with rheumatoid arthritis.
The absence of AC joint symptoms prior to October 2003 and the presence of such symptoms thereafter suggest that the accident affected the natural course of the rheumatoid arthritis condition. Even if the accident did not have a significant effect, the resulting compensable surgery, which involved debridement of the AC joint, surely rendered the underlying condition symptomatic. I find, then, that the subsequent progression of AC joint symptoms falls within the scope of this claim as does any disability from work.
The evidence supports that the work-related right shoulder impairment prevented the worker from the reaching demands imposed by lottery ticket transactions, cash, sales, and rental duties in the courtesy desk job. Without assistance or modifications, the job was not suitable. As no other duties were offered to the worker after January 2006, full LOE benefits are in order from January 3, 2006 until the date of the worker’s commencement with a new employer in
January 2007.
In January 2007 the worker was almost 60 years of age. Her most recent employment as of that date was grocery store clerk. Direct entry into employment as a receptionist was reasonable and the associated minimum wage was reflective of the worker’s earning potential. The worker is entitled to partial LOE benefits, based on actual earnings, from January 2007 to present. If the employer cannot provide suitable work, the worker is entitled to the same level of LOE benefits to age 65.
CONCLUSION
The objection is granted.
The worker’s request for entitlement to a recurrence in January 2006 is granted on the basis that deterioration of the right shoulder condition is a consequence of the work-related injury.
The worker is entitled to full LOE benefits from January 3, 2006 until she returned to work with a new employer in January 2007.
The worker is entitled to partial LOE benefits from January 2007 to present based on an average of actual earnings.
If the employer cannot provide suitable work, the worker is entitled to partial LOE benefits based on an average of actual earnings to age 65.
DATED October 2, 2009
D. Shepherd
Appeals Resolution Officer
Appeals Branch