WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100127
OBJECTION BY: The worker
EMPLOYER: Participating
HEARING DATE: July 14, 2010
ATTENDEES: Worker, Worker Representative, Employer
ISSUES
1-The worker objects to the denial of entitlement to a recurrence from August 21, 2007.
2-He requests reimbursement for chiropractic treatments.
3-The worker requests ongoing entitlement to include a permanent impairment assessment.
HOW THE ISSUES AROSE
This claim was established upon receipt of the Employer’s Report of Injury/Disease (Form 7) dated March 7, 2003.
On March 7, 2003, the worker was 47 years of age and employed as a saw filer. He claimed a disablement type of injury to the left shoulder area as a result of performing his regular saw filing activities. He had been a saw filer for 22 years.
The initial diagnosis was a left rotator cuff muscle strain on the Doctor’s First Report. The treating physician indicated a repetitive strain left rotator cuff muscles, chronic left shoulder pain for over 2.5 years due to work duties. The worker reported pain to the left shoulder and cervical/thoracic region. He was provided with precautions of modified heavy lifting with the shoulders. A physical demands analysis was provided to the claim file.
The file was listed for an investigation in order to secure all available medical documentation, to assist in establishing the correct date of accident. As well, an ergonomist visited the work site and provided a detailed report dated September 9, 2003.
Upon receipt of the investigation notes and the ergonomist’s report, the file was reviewed by the case manager. It was determined that a causal relationship had been established between the work performed as a saw filer and the onset of chronic left shoulder pain.
Entitlement was granted for health care benefits only, noting the worker did not miss any time from work. The date of accident was established as September 5, 2000 noting the Doctor’s First Report reported that on March 5, 2003, the worker had complaints of left shoulder pain for 2.5 years.
On May 21, 2004, the worker spoke with the case manager. He indicated that the employer implemented some of the changes based on the recommendations in the ergonomic report. Specifically, the employer had installed a monorail which limited the amount of carrying required. The workload had also decreased and he had more control over the workload.
The worker stated that his condition had improved significantly, and stated that his condition had resolved. He stated he was not requesting any permanent impairment assessment. The case manager confirmed the entitlement in this claim, and the conversation of May 21, 2004, in the letter dated June 24, 2004.
The worker contacted the case manager in August 2007 and indicated he suffered a recurrence effective August 21, 2007. He requested additional chiropractic treatment for the left shoulder from August 21, 2007.
He associated the recent left shoulder problems to performing his regular job as lead saw filer. He stated that following a reduction in the workforce from 3 shifts to 2 shifts, he was performing more work. There were no specific accidents and no changes to the nature of the work performed, but there was an increase in work duties. The worker indicated he was not working any overtime; however, the work-day was more compressed.
The case manager obtained the patient chart notes from his treating doctors from January 2004 to October 2007. He was seen 30 times in 2004 and 29 times in 2005, but there was no mention of the left shoulder. He was seen 15 times in 2006 and there was mention of the left shoulder on 4 occasions only.
The diagnosis provided on March 23, 2007 was left parascapular/rotator cuff strain. No accident history was provided. On March 29, 2007, the chart notes stated “left shoulder sore; doing lots of repetitive movements. He was seen again on March 30, April 2 and April 3, 2007.
The doctor indicated on August 21, 2007, “WSIB” with a diagnosis of left repetitive strain rotator cuff and RSI elbow and wrist. No accident history was provided.
The employer indicated there was no continuity of complaint from March 2003 to April 2007.
The employer advised the case manager that on April 16, 2007; the saw-filers were informed that they were required to work on a rotation schedule of 3 shifts. The employer stated the worker had expressed dissatisfaction regarding these changes and had applied for another position. However, he was not the successful candidate.
As outlined in the letter dated March 14, 2008, the case manager determined there was no evidence of a permanent impairment related to the September 5, 2003 injury. The case manager indicated there were no continuity of complaint from March 2003 to April 2007 and no evidence of a new accident.
The case manager indicated that the only change to his employment was a shift rotation and the layoff of one shift. There was no job change. Although the worker sought treatment from the chiropractor on a regular basis between 2003 and 2007, there was no continuity of medical attention for the left shoulder in 2004, 2005 and minimal continuity in 2006.
As such, entitlement to a recurrence effective August 21, 2007 or to a new accident was denied. Ongoing chiropractic treatment was also denied. These are the issues under objection.
AUTHORITY
Operational Policy#17-01-07, Chiropractic Treatment
Operational Policy#15-03-01, Recurrences
Operational Policy#11-01-05, Determining Maximum Medical Rehabilitation (MMR)
Operational Policy #18-07-01, Determining the Degree of Disability
EXHIBITS
Exhibit#1: Daily routine of filer’s work – not including lead duty. Three page document.
Exhibit#2: Medical note dated July 13, 2010 from Rose-Anne Gravel, RMT confirming continuity of medical attention from April 2004 to October 11, 2007 for the left shoulder.
Exhibit#3: Note from worker dated January 12, 2009 to Union representative, Sylvia Boyce, with attached Safety Talk (Basics of Safety) handout given by employer. (1page).
Exhibit#3 (Ctd) Attached handwritten notes from worker outlining dates of reporting complaints of pain and to whom.
ASSESSMENT OF THE EVIDENCE
I have carefully reviewed this claim in its entirety and considered the worker’s testimony provided at the hearing. The following is my assessment of the evidence on record.
The worker indicated that although he continued to suffer from left shoulder/arm pain, he did not lose any time from work. He has a strong work ethic and worked through his pain rather than take time off work. He is not requesting any Loss of Earning (LOE) benefits from the recurrence of August 2007.
He testified that he returned to his regular duties with the employer as a lead saw filer. In this job, he was responsible for ensuring equipment was in good working condition, and ordering saw blades and supplies. He would maintain the stockroom supplies, and deal with sales representatives.
These duties had to be done while still doing his regular work as a saw filer. In other words, being the lead did not mean his job was easier. In fact, it was busier because he had to accomplish his regular workload and also ensure the above tasks were completed.
He had added responsibilities such as ensuring the oil tanks for the edgers & Comaks were filled, looking after stock room for knifes, parts, circular saws. It was his responsibility to make sure they didn’t run out. He also did the maintenance of the grinders in the filing room.
He did not get a break from the use of the shoulders when doing the other jobs. He still had to change the saws, and the hammering was done by him. When he’d have a couple minutes free, he would run off and contact suppliers, salesmen, etc.
His arm did improve for a time initially, but the pain returned and gradually got worse as he continued to work. The worker stated that in 2007, they had removed a shift. This meant that the employer was attempting to use the saws for more sizes of wood.
As a result, there were a lot more oversized logs for fibre recovery and this caused a lot of jamming of the saws. This was very demanding on the guides and on the saws. It was decided they had to change the saws every 4 hours instead of every 8 hours. This resulted in an increased workload. The scheduling for the saws made a big impact on his condition.
He indicated that in 2007, it wasn’t a new injury. Since 2004, it had never completely gone away. It gradually worsened because they were using thinner saws and had to change them every 4 hours. They used skinnier/thinner saws in summer and thicker ones in winter.
The worker testified that he did receive the health and safety training at work and that they were advised to report any injury, no matter how minor and they were instructed to report any unsafe conditions. However, they were not told they had to report ongoing pain and regularly make complaints of pain to management. His pain was ongoing since the onset and was not as a result of a new accident; therefore, he worked through the pain as much as possible.
He stated, however, that he would mention it to the foreman and to co-workers that his arm hurt. However, no changes resulted from it so he chose to keep it to himself most of the time.
He pointed out Exhibit#3, the employer’s handout titled Safety Talk: Basics of Safety, dated December 2006. This handout, in item #7, states, in part, “Reporting is important – Never fail to report accidents, defective equipment, and unsafe conditions.”
The worker indicated that this hand-out does not say that it was necessary for injured workers to regularly report to the employer any ongoing complaints of pain. I find that the worker is correct in this statement as this document does not specify that it is necessary for workers to maintain or establish continuity of complaint with the employer after a return to work.
He pointed out that in 2008 there was a course regarding reporting and WHIMS, provided by the employer. They were told to report everything now, even ongoing pain, aches, etc. and not just specific accidents. Therefore, from 2008 onward, he kept a list of the people he reported his ongoing pain to and the nature of complaints. He reported to the health and safety person and she’d document it in a file.
The worker spoke about the inference made by the employer that the worker claimed a recurrence because he was unhappy about working shift work, as a result of the new changes in 2007. He pointed out that the job he applied for in June 2007 also involved shift work; the same ones that were involved in his regular job. Therefore, that aspect would not have changed in the new job.
The worker indicated that the reason he had applied for the Comak job was in order to stop saw filing and constantly aggravating his shoulder area. He wanted relief from the constant pain brought on by his regular work.
His regular work involved hammering saws, re-filing, re-tipping saws etc. He’d tell the maintenance foreman that he was sore and be told to take it easy or the employer would get a helper for him for a bit.
The worker indicated he did have continuity of medical attention. He continued to see his family doctor, from 2000 to 2004. In 2004, he was referred to a registered massage therapist by his doctor to help his entire shoulder/arm region. He continued with this treatment until
October 2007 when he could no longer afford it. I noted that this statement is confirmed in the report provided by the RMT documented as Exhibit#2.
The worker said that he also would use Hot/Cold pads on his shoulder area, take Aspirin, Tylenol, and over the counter medication to relieve the pain as much as possible. He stated that his pain would go down when the load at work would reduce a bit. If there were a lot of jam ups in a shift, this involved more work, more saw filing and as a result, more pain.
He tried acupuncture, going to the chiropractor and his regular doctor. He was referred for an MRI and a nerve conduction study (still waiting for date of appointment). He is still attending massage therapy.
The worker indicated that the employer did implement some of the changes that the ergonomist had recommended. These included installing a monorail lift system/chain block to carry boxes to the Comak. As well, they used to have steel guides and the guides were changed to aluminium with steel. These are lighter.
They now have an ultrasonic machine for some of the saws to remove gum and sap. They used to remove the gum and sap from the saws with a mini-grinder. Now they soak them in the machine and it cleans it.
However, the changes that were not done, impact him directly. The recommended saw changes were not done. The position has remained the same for removing the saws. The guides have not been changed, so they work the same manner. The lighting changes were done for the edger only. On the Comak it took two or three years for proper lighting. They use a rope and pulley to open a trap that was blocking the light.
I have carefully considered the worker’s testimony at the hearing. In weighing the evidence and determining the potential contribution of the work, it is important to ensure the details concerning any pre-existing or co-existing conditions are considered. Should a worker have a pre-existing condition that renders them more susceptible to injury, it is important to then consider if the work activity maybe be a significant factor in triggering the impairment.
In this case, the worker did not have an underlying or co-existing condition other than the compensable left shoulder injury. As such, I find that entitlement must be considered on the basis that the regular work activity was a significant factor which “aggravated” the compensable condition to the point it now presents a disabling feature.
The risk factors for a repetitive strain injury continued to be evident and although the worker did not miss time from work, he did have ongoing aggravation to the initial condition. I am satisfied that continuity of medical attention has been established. As well, noting the nature of the work performed, I find the worker’s testimony regarding his ongoing pain to be credible.
Moreover, it would appear from the medical documentation on file, the worker suffers from a repetitive strain syndrome not only to the left shoulder but also involving the parascapular, thoracic area and the left arm. As such, for the sake of clarity, entitlement in this claim is expanded to include the thoracic/parascapular area, as well as the left shoulder and arm.
In order to consider a permanent impairment in a claim file, there must be medical documentation on file showing a residual disability on a permanent basis. This is shown through ongoing medical treatment, recommendations of the physician, and objective physical findings outlining an assessable loss of function. I am satisfied that the worker has developed a permanent impairment to the thoracic/parascapular area including the left shoulder and arm.
Under the authority of the Workplace Safety and Insurance Act, the Workplace Safety and Insurance Board (the Board) has the responsibility to monitor and control all treatment that an injured worker receives. In administering the Act, it is not the Board's intent to disrupt or change this treatment, but rather to monitor its progress and effectiveness. This is to ensure a high quality of health care is provided to all of the injured workers of Ontario.
In the field of chiropractic treatment, the Board has established, after discussions with individual chiropractors and with the Ontario Chiropractic Association, that 8 to 12 weeks would be a fair and suitable period for chiropractic treatment to be rendered without specific Board approval. In exceptional cases, should the chiropractor wish to continue treatment beyond 12 weeks, written permission must be obtained from the Board.
Based upon chiropractic reports, the Board controls the length of chiropractic treatment or referrals to specialists. An extension of treatment may be granted provided it is requested in advance and the reports from the chiropractor substantiate further chiropractic treatment is warranted. Chiropractic treatments for the purpose of maintenance or support, is not an allowable charge under the Health Care provisions of the Workplace Safety and Insurance Act.
I find that the chiropractic treatments he received for the period of acute exacerbation from August 2007 for twelve weeks were appropriate. Subsequent treatments beyond twelve weeks will require a review from the operating area to determine ongoing entitlement to chiropractic treatments.
CONCLUSION
1-The recurrence of August 2007 is allowed.
2-Chiropractic treatments for 12 weeks from August 2007 are granted.
3-Ongoing chiropractic treatments beyond 12 weeks will be determined by the operating area.
4-Entitlement in this claim is expanded to include the left shoulder, the thoracic/parascapular region and the left arm.
5-A permanent impairment is evident for the left shoulder, thoracic/parascapular, left arm area.
The worker’s objection is granted.
DATED September 17, 2010
M. St-Hilaire
Appeals Resolution Officer