Employer v. Worker, 2010 CanLII 35732

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

Decision number: 20100069

OBJECTION BY: Employer

WORKER: Participating

HEARING DATE: April 28, 2010

ATTENDEES: Worker, Worker Representative, Employer, Employer Representative, Observer from CUPE Local 4400 and from the Employer

ISSUES

The employer is objecting to the allowance of initial entitlement for the worker’s left hand, resulting from a May 30, 2008 accident, which was allowed on an aggravation basis under Claim 25185006. This is the result of a decision dated December 4, 2008.

The employer is also objecting to the allowance of initial entitlement for the worker’s right hand, resulting from a November 21, 2008 accident which was also allowed on an aggravation basis under Claim xxxx6292. This is also the result of a decision dated December 4, 2008.

HOW THE ISSUES AROSE

Claim xxxx5006 – May 30, 2008 – injury to the left hand

On June 2, 2008, this worker reported to her employer that she began having pain and swelling in her left hand on May 30, 2008, which she related to her working duties as an accounts payable administrator. More specifically, the worker related her left-hand pain and swelling to the keyboarding and mousing required of her job due to heavy volumes of work. As a result of this injury, the worker stopped working from June 9, 2008, when she then returned to working her regular duties.

The case manager (CM) reviewed the details of the report accident and confirmed that this worker did in fact, have a pre-existing bilateral-arm condition, which was the result of a non-compensable accident where the worker was previously hit and dragged by a TTC bus, for which she was still seeking ongoing healthcare at the time of this injury.

Noting the pre-accident condition, and this now minor work-related injury to the same body part, the CM allowed the claim on an aggravation basis only for the worker’s left hand. As a result, entitlement was therefore allowed, for the acute episode only, and benefits would be paid until the worker returned to her pre-accident state.

As the worker confirmed that she had sought medical attention for her left arm and that the doctor had recommended that she not use her left arm for a week, the worker then remained off work from June 2, 2008 to June 9, 2008 and then returned to her regular duties as an accounts payable administrator. As modified work had not been discussed with the accident employer and the worker could not perform her regular duties, loss of earnings (LOE) benefits were allowed during the worker’s period of lost time from work.

This is outlined in a decision dated December 4, 2008 and the employer is now objecting to this decision.

Claim xxxx6292 – November 21, 2008 – Injury to the right hand

On November 27, 2008, this worker then reported to her employer that she was having pain and swelling in her right hand, which she again attributed to her working duties as an accounts payable administrator, which involved mainly computer keyboard use.

She confirmed that she first began feeling her right-hand pain on November 21, 2008, where she then sought medical attention on November 22, 2008.

As previously indicated above, this worker did have a pre-existing condition involving her bilateral arms, which she sustained as a result of a prior non-compensable accident involving TTC, and for which she was still seeking ongoing healthcare at the time of this injury. In light of this and the fact that the worker confirmed that at the time of the November 21, 2008 injury she was performing her regular duties, which she could no longer perform, the claim was then allowed on an aggravation basis noting the pre-accident injury to the worker’s right arm and the minor work-related injured to the same body part. As previously noted, entitlement on an aggravation basis was therefore only considered for the acute episode only and benefits would continue until the worker returned to her pre-accident state.

As a result of this accident, it was confirmed that the worker was off work from November 24, 2008, when she then returned to working modified duties on November 26, 2008; however, this still involved computer usage, keyboarding, which lead to this worker having further pain in her right hand. As such, this worker laid off work again effective November 28, 2008, as the employer could no longer accommodate her restrictions. LOE benefits were therefore paid from November 24, 2008 to November 25, 2008 (inclusive), and then from November 28, 2008 to February 23,2009 when she returned to working her regular duties increasing her hours gradually to full-time again by March 13, 2009.

This decision was also outlined in another December 4, 2008 claims decision under this Claim xxxx6292. The employer is now objecting to this decision.

AUTHORITY

Workplace Safety and Insurance Act (the Act) and Workplace Safety and Insurance Board Operational Policy Manual Documents (OPM):

• 11-01-01 – Adjudicative Process
• 11-01-15 – Aggravation Basis
• 15-02-01 – Definition of an Accident
• 15-02-02 – Accident in the Course of Employment
• 18-03-02 – Payment of LOE Benefits

EXHIBITS

• Exhibit 1 – Copy of a May 30, 2008 email from the worker addressed to her manager. This was submitted by the employer representative at the Hearing.
• Exhibit 2A – Copy of an email from the worker, dated November 19, 2008, addressed to her manager. This was also submitted by the employer representative at the Hearing.
• Exhibit 2B – Copy of an email from the worker, dated November 20, 2008, addressed to her manager. This was also submitted by the employer representative at the Hearing.
• Exhibit 3 – Copy of an email from the worker, dated November 26, 2008, addressed to her manager. This was also submitted by the employer representative at the Hearing.
• Exhibit 4 – Copy of a December 23, 2008 letter from the worker’s physiotherapist along with clinical notes from the worker’s visits from August 31, 2007 through to June 25, 2008. These were submitted by the worker representative at the Hearing.

ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS

At the Hearing, the worker testified to the following:

• She was employed with this employer since 1989 where she initially worked in maintenance for a few years and then transferred into accounts payable about 12 to 15 years ago, where her title then changed to accounts payable administrator. As part of her duties, she processes invoices, answers telephone enquiries for all employees, schools, vendors, et cetera, does filing, mail, and correspondence. Furthermore, she also does reconciliations of statements, audit, and year-end, which are performed at the end of August and the beginning of September for approximately a three-week period. She also performs other duties, as assigned.
• She confirmed that processing invoices is about 85 to 90 per cent of her job. Furthermore, she indicated that she could be processing invoices and, at the same time, as she was on the telephone; therefore, the telephone duties account for about 80 to 90 per cent of her work. Filing is about 10 to 20 per cent of her job. She confirmed that audits are done one time per year in October, every year. At this time, she does credit notes, contacts all vendors and departments, performs emailing tasks, faxing, and reconciliation of accounts. As such, she confirmed that October is quite busy; however, year-end was much busier.
• Prior to 2007 she confirmed she had a number of prior Workplace Safety and Insurance Board (WSIB) claims where her last allowed claim was in August 2005. Between August 2005 and May 2008, she was not sure if she had had another claim or not.
• On both Forms 6, under Claims xxxx5006 and xxxx6292, she had five other claims noted. The first was November 10, 1999 where the nature of the injury was for the hands, wrists, and arms, but not sure if it was for one hand only or both. Fingers, at this time, may also been injured.
• She went off in January 2000, on either January 23 or January 26, 2000. Under the claim, she thinks it was her hands and arms, but not sure if it was for both.
• In March or May 2000, another claim for hands, arms, fingers, and neck was established. She also indicated that there was apparently another claim submitted; however, she was not sure when that was done or for what.
• Prior to May 2008 she had yet another claim submitted but was not sure again about when or what it was for.
• In March 2007, she confirmed that in a non-compensable accident where she was apparently dragged by a TTC bus. In this accident, she confirmed that she sustained injuries to her face, neck, hands, arms, shoulders, feet, back, and ribs. She was off work for 5½ weeks for this non-compensable accident and when she then returned to work afterwards she returned right back to her regular duties as an accounts payable administrator. Since this time, she has had ongoing doctor’s appointments and still attends some medical appointments today. She is also still attending physiotherapy because of this non-compensable TTC accident and also because of her November 10, 1999 claim. She also attended chiropractic treatment; however, she could not recall the name of the chiropractor or if the WSIB was paying for this or not. After her non-compensable accident of March 14, 2007 she confirmed that physiotherapy did increase as she had aggravated her prior condition. Just immediately prior to her non-compensable TTC accident, she believes that she did have physiotherapy treatment between January 2007 and March 2007. She was not sure when she started physiotherapy after the TTC accident but remembers she attended about 3 to 4 times per week. As for chiropractic treatment, she could not remember when she last saw her chiropractor.
• When she returned to work after the TTC accident of March 2007, she thinks she returned to working her regular duties. The August 31, 2007 physiotherapy report recommended a new keyboard and chair; however, the worker confirmed that in January 2009 she again needed another chair. Prior to the May 2008 accident, she confirmed that she had wrist splints, but could not wear them because they rubbed her fingers. She confirmed it was the WSIB who recommended that she get these wrist splints. According to the April 23, 2008 clinical notes from the physiotherapist accommodations for the TTC accident were recommended but she cannot specifically recall this.
• As a result of her non-compensable TTC accident, there was a civil claim as the worker sued for his sick time back. She apparently did receive a settlement from the TTC, but stated that this was not specifically for loss of earnings.
• Before May 2008, her daily duties included working from 9:00 am to 5:00 pm, signing-in on the computer, checking emails, processing invoices, checking telephone messages, and returning calls, or emails as required. She confirmed that she has a half-hour break for coffee in the morning, as well as a one-hour lunch.
• She is required to date and note the invoice number as well as the amount of the invoices in the header text. She indicated there were purchase order invoices, and also pay direct. There were many lines to be completed in doing this and if there were problems, she then needed to look into the purchase-order history if any. She also does spreadsheets and uploading of information. On an electronic spreadsheet, she indicated that she could put a number of invoices at one time, where she would input the date, the invoice number, the CAP code, currency, cost, or work order number for maintenance, and vendor number etcetera. For electronic invoices, she verifies, as well as cuts and pastes. She needs to verify the invoice to ensure the information is correct. She also deals with network numbers, and also deals with difference currencies.
• Prior to May 2008, meetings were held on a monthly basis and she worked about 35 hours per week plus overtime, if required. However, she could not recall if she had worked overtime in and around May 2008.
• Prior to May 30^th, 2008 injury under claim xxxx5006, she indicated that she also attended assessments at a chronic pain clinic and confirmed that this had been aggravating her prior condition. She confirmed that she stopped attending the chronic pain clinic because she felt she was getting worse and the taxi that was paid for by her law firm was not showing up on time. She confirmed that she attended this clinic about 2 to 3 times per week; however, felt she was getting worse than when she even first started with them. Further, she confirmed that she attended a medical assessment on May 28, 2008; however, she could not recall if that was related to TTC or not. On May 29, 2008 she apparently requested a vacation day; however, did not recall this either. What she did remember was telling her manager at that time that she may need time off because on this day she may be in pain after this TTC appointment.
• On the Worker’s Report of Injury/Disease (Form 6), the day of accident is listed as May 30, 2008 and this was claimed after only working 1½ hours on this day. The worker indicated that the workload caused her pain and she was experiencing pain and swelling in her right hand, arm, shoulder, and neck. She confirmed that she has a knot in the shank of her neck, which affects down into her shoulders, hands, wrists, and neck. Once it reaches her neck, she indicated that it become a full-blown migraine. She confirmed that her left side is worse than her right side and that she had pain in both the left and the right hand on May 30, 2008. Meanwhile, the Form 6 only says, pain in the left hand.
• She believes she mentioned her injuries that same morning; however, on May 30, 2008, she could not recall sending her manager an email that she would be leaving at 4:00 pm to attend a physiotherapy treatment for a TTC accident. When asked why she never mentioned her work-related injury to her manager in the email that she sent to her manager at 11:26 am (after her accident), the worker had no reply. She was not sure how long she was off after her May 30, 2008 accident; however, she believes she returned to work around June 9, 2008 as per records on file; however, she does not recall if she returned to her regular duties at this time or not.
• She worked until November 21, 2008 until she sustained her second injury to her right hand under Claim xxxx6292. She could not recall if the employer had paid her between June 9, 2008 and her second accident of November 21, 2008. The worker could also not recall attending physiotherapy treatment on November 20, 2008 as well as the chronic pain clinic assessments on November 19, 2008 and November 26, 2008.
• As the worker clearly refused to answer many questions of the employer representative, the appeals resolution officer (ARO) informed the worker at this time that if she chose not to answer the questions, negative inference would be taken. The worker then appeared to become more forthcoming with her answers to the employer representative’s questions.
• She confirmed that she attended Chronic Pain Solutions, which is a chronic pain clinic; however, she was not sure if any of the results were reported to her family doctor. After reviewing copies of the emails, which she apparently sent to her manager herself (Exhibits 2A and 2B), she could not remember sending these emails either.
• She confirmed that she was attending physiotherapy and then her law firm decided to send her to the chronic pain clinic. She confirmed that they did this because the TTC was no longer paying for physiotherapy. As she was not happy with the chronic pain program, she called the physiotherapist herself to get more treatment and told her lawyer that she would be doing this. She is not sure if her family doctor received copies of the medical information pertaining to the chronic pain clinic visits, but did inform her doctor of them.
• She confirmed that it was common practice for her to inform her manager about any medical appointment she would leave for and that during the week of November 19, 2008 she was therefore leaving early for appointments that week and therefore not working 35 hours that week. (Exhibits 2A, 2B, and 3).
• According to the Form 6, under Claim xxxx6292 for the right hand, the day of accident noted was November 21, 2008 at 5:00 pm. When asked what actually had happened at 5:00 pm on this day, the worker could not recall a specific injury occurring on November 21, 2008 at 5:00 pm. She indicated that she reported her injury on November 27, 2008 but was not sure why she had delayed in reporting.
• After November 21, 2008, she returned to work on November 26, 2008 but did not recall this. She then apparently went off work again effective November 27, 2008 to January 12, 2008. However, the worker could not recall why she had to be off during this period of time. As for her chronic pain appointment which was scheduled at 5:00 pm on November 26, 2008 (email outlined in Exhibit 3), she indicates that she had a 5:00 pm chronic-pain appointment which she had to leave for at 4:00 pm. At this time, she indicated that she was not sure if she had actually attended this session or not as she was not sure if the taxi had actually shown up on this day. Furthermore, she was not sure when she returned to work or if she had returned to work working modified duties or not.
• As her prior emails (Exhibits 2, 2A, 2B and 3), the worker could not recall if she actually attended as there was often a problem with her taxi not showing up.
• On Page 9 of the physiotherapist’s notes (Exhibit 4), she did not recall not going to physiotherapy on May 30, 2008. She confirmed that her first two claims and her last two claims do not appear to be anything different. In Claim xxxx6292 of November 2008, she does not recall a meeting in January 2009 with the return-to-work specialist. At this time, changes to the ergonomic setup were recommended to be done within a few weeks; however, this ergonomic change only occurred in June or August 2009. Ergonomic changes included an aerodynamic keyboard, pullout trays, document holder, stapler, ring pin, and headset either new or to be repaired.
• After the TTC accident her “workplace complaints were 100 per cent worse”. She could not remember all of the details of her May 30, 2008 work-related accident, but recalled having pain in her neck, bilateral hands, bilateral arms, bilateral fingers, and bilateral shoulders. As for her November 21, 2008 claim, she confirmed that she had either the same or similar issues as the May 2008 claim. She could not confirm a specific incident for either of her claims on May 30, 2008 or for November 21, 2008.

Analysis

In reviewing the objection I have had consideration for the claim file information, the hearing, relevant policy and legislation as well as for the arguments presented.

All adjudicators use the same criteria for ruling on initial entitlement to WSIB benefits. According to WSIB Policy 11-01-01:

A claim created by the WSIB for a workplace accident/disease is adjudicated based on entitlement principles and the facts of the case.

Five point check system All adjudicators use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system." An allowable claim must have the following five points

• an employer
• a worker
• personal work-related injury
• proof of accident, and
• compatibility of diagnosis to accident or disablement history.

Proof of accident Some points adjudicators consider when examining proof of accident are

• Does an accident or disablement situation exist?
• Are there any witnesses?
• Are there discrepancies in the date of accident and the date the worker stopped working?
• Was there any delay in the onset of symptoms or in seeking health care attention?

Policy 11-01-15 for entitlement on an aggravation basis also states:

In cases where the worker has a pre-accident impairment and suffers a minor work-related injury or illness to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis. Generally, entitlement is considered for the acute episode only and benefits continue until the worker returns to the pre-accident state.

I have carefully reviewed both claim files under objection as well gave some consideration to the worker’s prior claims as well as her testimony at the hearing. In reviewing prior claims, I note that this worker did have prior RSI claims for her bilateral hands which required wrist splints in the past however these do not appear to be the main contributor of the worker’s on May 30, 2008 or November 21, 2008 claims.

I will therefore turn to address the employer’s objection to the initial allowance of a

May 30, 2008 left hand injury under claim xxxx5006.

When asked at the hearing what happened at the time of her May 30, 2008 injury to her left hand, the worker could not recall a specific incident which would have caused her pain other than her regular duties. What we do know however is that this worker did confirm that she was involved in a major non-compensable accident involving TTC where she was hit and dragged by bus in March of 2007. At the time of this accident, the worker testified that she sustained significant injuries to her face, neck, bilateral hands, bilateral arms, bilateral shoulders, feet, back, and ribs. She was also off work for 5½ weeks for this non-compensable accident and when she then returned to work afterwards she returned right back to her regular duties as an accounts payable administrator. Nonetheless, it should be noted after the TTC accident the worker herself testified that her “workplace complaints were 100 per cent worse”.

Since her non-compensable TTC accident, she has had ongoing doctor’s appointments and confirmed that she still attends some medical appointments today. Of interest, this worker did attend an assessment at the chronic pain clinic on May 28, 2008. This is confirmed in the June 04, 2008 clinical notes from the physiotherapist who noted that the worker had:

“attended a chronic pain clinic assessment on Wednesday last week and states she was in pain in could not go to work.”.

Furthermore, on the Worker’s Report of Injury/Disease (Form 6), the day of accident is listed as May 30, 2008 and this was claimed after only working 1½ hours on this day The worker indicated that the workload caused her pain and she was experiencing pain and swelling in her right hand, arm, shoulder, and neck. The worker testified that her left side at the time was worse than her right side and that she actually had pain in both the left and the right hand on May 30, 2008 and not just in the left hand as was claimed on her Form 6.

On May 30, 2008, the worker indicated that she believed she had mentioned her injuries that same morning; however she could not recall sending her manager an email that she would be leaving at 4:00 pm on this same day to attend a physiotherapy treatment for a TTC accident. Moreover, when asked why she never mentioned her work-related injury to her manager in this email that she sent to her manager at 11:26 am (after her accident which the worker’s Form 6 indicates occurred at 10:30am), the worker had no reply.

I have also noted that it does not appear that there was an increase in the worker’s workload or change in duties to cause an aggravation of the pre-existing left hand condition at this time.

From my review of the evidence, this worker’s left hand pain at the time appears to clearly be the result of a non-compensable chronic pain assessment of May 28, 2008 which was related to her significant accident involving the TTC which she attended just prior to the claimed May 30, 2008 accident.

There is no evidence of an accident on May 30, 2008 that either caused or aggravated a pre-existing condition at this time. It appears however that the worker’s non-compensable chronic pain assessment was the aggravating factor as confirmed by the physiotherapist’s clinical notes of June 04, 2008.

The employer’s objection to the allowance of initial entitlement for a May 30, 2008 injury to the worker’s left hand is allowed. Initial entitlement of this claim xxxx5006 is to be revoked as there no evidence of a work-related accident that caused or aggravated this worker’s condition on May 30, 2008.

I will now turn to address the employer’s objection to the allowance of a November 21, 2008 injury to the worker’s right hand.

At the hearing, the worker again could not recall an actual accident which would have caused or aggravated her pre-existing right hand condition. The worker could also not recall attending a yet another chronic pain clinic assessment on November 19, 2008, physiotherapy treatment on November 20, 2008 as well as yet another chronic pain clinic assessment on November 26, 2008 for which she had to leave early. These were however confirmed by exhibit #’s 2A, 2B and 3 as these are copies of e-mail send by the worker to her manager confirming the need to leave early for these appointments. Although this worker could not recall if she actually attended these appointments as there was apparently problems with her taxi not showing up, there is no evidence contradicting the fact that she had appointments on these days therefore I accept that she did in fact attend these non-compensable medical appointments which were related to her TTC accident as her family doctor’s medical note date November 25, 2008 indicates:

“The above requires modified duties at 4 hrs/day only. Can do unlimited filing, sorting mail, phone answering. Joy is currently undergoing testing with a specialist.”

It is therefore evident from this medical note that this worker could not have been undergoing testing related to her claimed injury of November 21, 2008 (which was only 4 days prior). The medical evidence at this time again suggests that the worker’s pain would have been again related to her non-compensable TTC accident for which she was still undergoing substantive testing including physiotherapy sessions as well as chronic pain assessments. This accident history is actually exactly similar to the May 30, 2008 claimed accident in the sense that the worker attended an assessment at the chronic pain clinic on November 19, 2008 for her non-compensable TTC accident and then two days later files a WSIB claim with an accident date of November 21, 2008.

In her testimony at the hearing, the worker also confirmed that she was attending physiotherapy and then her law firm who was handling her non-compensable TTC case decided to send her to the chronic pain clinic. She confirmed that they did this because the TTC was no longer paying for physiotherapy. As she was not happy with the chronic pain program, she called the physiotherapist herself to get more treatment and told her lawyer that she would be doing this. She is not sure if her family doctor received copies of the medical information pertaining to the chronic pain clinic visits, but did inform her doctor of them.

Finally, according to the Form 6 under Claim xxxx6292 for the right hand, the day of accident noted was November 21, 2008 at 5:00 pm. When asked what actually had happened at 5:00 pm on this day, the worker could not recall a specific injury occurring on November 21, 2008 at 5:00 pm. She indicated that she reported her injury on November 27, 2008 but was not sure why she had delayed in reporting. I have also noted that it does not appear that there was an increase in the worker’s workload or change in duties to cause an aggravation of the pre-existing right hand condition at this time,

The evidence therefore suggests and I conclude that there is again no evidence of an accident to the worker’s right hand on November 21, 2008 that either caused or aggravated a pre-existing condition at this time. It appears however that the worker’s non-compensable chronic pain assessment was again that the aggravating factor.

The employer’s objecting to the allowance of initial entitlement for a November 21, 2008 injury to the worker’s left hand is allowed. Initial entitlement of this claim xxxx6292 is also to be revoked as there no evidence of a work-related accident that caused or aggravated this worker’s condition on November 21, 2008.

CONCLUSION

The employer’s objections are allowed.

The employer’s objecting to the allowance of initial entitlement for a May 30, 2008 injury to the worker’s left hand is allowed. Initial entitlement of this claim 25185006 is to be revoked as there no evidence of a work-related accident that caused or aggravated this worker’s condition on May 30, 2008.

The employer’s objecting to the allowance of initial entitlement for a November 21, 2008 injury to the worker’s left hand is allowed. Initial entitlement of this claim xxxx6292 is also to be revoked as there no evidence of a work related accident that caused or aggravated this worker’s condition on November 21, 2008.

Dated: May 28, 2010

L. Godin

Appeals Resolution Officer

Appeals Branch