WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20150001
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: None
HEARING: Ottawa – February 24, 2015
HEARD by: H. Mohamed, Appeals Resolution Officer
ADDITIONAL ATTENDEES: None
ISSUE(S)
The worker is seeking initial entitlement to left shoulder impairment.
BACKGROUND
On August 27, 2011 this then 47 year old correctional officer, working in a minimum security correctional facility, reported left shoulder pain which she attributed to repetitively moving window coverings and depressing light switches during the midnight shift. The worker advised the Eligibility Adjudicator (EA) that she would have to perform these activities approximately 140 times per shift and that during the summer months she had to work additional midnight shifts to cover for vacations and sickness.
The worker was seen by a specialist on September 6, 2011 and diagnosed with left shoulder impingement syndrome and a possible partial rotator cuff tear. An ultrasound report taken the same day confirmed the presence of several calcifications in the distal left supraspinatus from calcific tendonitis. There was no evidence of a rotator cuff tear or any other abnormality.
In a decision dated October 19, 2011, the EA denied initial entitlement on the basis that the evidence from the employer did not support that the worker was required to work excessive midnight shifts during the summer months. Moreover, the EA noted that the diagnosis of calcific tendonitis was a non-compensable condition that could not have been caused by the described job duties.
The worker appeals this decision and the issue is now before me.
AUTHORITY
Workplace Safety and Insurance Act (WSIA), 1997
Operational policy:
11-01-01 - Adjudicative Process
11-01-02 - Decision-Making
15-02-01 - Definition of an Accident
11-01-03 - Merits and Justice
Shoulder Injury & Disability: Discussion paper prepared for The Workplace Safety and Insurance Appeals Tribunal (WSIAT) by Dr. Hans K. Uhthoff, orthopaedic surgeon.
EXHIBIT(S)
- Exhibit 1 – 18 colour pictures
- Exhibit 2 – Night light switch distance from door frame
ANALYSIS
Based on my review of the evidence, I am unable to grant the worker’s appeal.
In arriving at this decision I considered the information in the claim file, the submissions made by the worker’s representative, the worker’s testimony as well as the relevant sections of the Workplace Safety and Insurance Act (the Act) and the appropriate Operational Policies.
In making decisions regarding the work relatedness of a claimed injury WSIB decision makers rely on the policy “11-01-01 Adjudicative Process”. A portion to the policy is outlined below:
All decision-makers 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.
Decision-makers may consider the following when examining proof of accident,
- Does an accident or disablement situation exist?
- Are there any witnesses?
- Are there discrepancies in the accident date and the date the worker stopped work?
- Was there any delay in the onset of symptoms or in seeking health care attention?
If it is not clear that the (injury or disablement) diagnosis provided is the result of the accident or disablement history described, a decision-maker may consult with the WSIB's clinical staff to assist in making this determination.
According to Policy “15-02-01 Definition of an accident”, an accident includes a chance event or a disablement arising out of and in the course of employment. The definition of chance event is an identifiable unintended event which causes an injury. An injury itself is not a chance event. The definition of disablement includes a condition that gradually emerges over time or an unexpected result of working duties.
According to the Form 6 completed by the worker on September 19, 2011, she indicated that she was responsible for conducting eight patrol rounds per midnight shift. Each round involved moving a window curtain at eye level and also depressing a chest high night switch to monitor each inmate. The worker stated that this was done approximately 75 to 125 times during each shift. The worker claimed that her pain started late June and July 2011 as a result of working more midnight shifts.
The worker testified that she has numerous duties as a correctional officer and that these duties vary depending on whether she is working a day shift or night shift. Her primary duties include routine patrol, work release absences, paperwork, head counts and inmate monitoring among other things. She stated that she only started working in a minimum security prison around 2009 or 2010 and there were roughly 250 inmates in the facility at that time.
The worker explained that the inmates are housed in duplexes (town houses) that are primarily two levels. Each house contains six to eight inmates. There are four neighbourhoods and there are approximately 8 houses per neighbourhood. The worker explained that every two hours they are required to do a head count of all the inmates and during the day shift each officer is responsible for one neighbourhood. However during the midnight shift, only two officers are working so each officer is assigned two neighbourhoods. This means that each officer would have to count and check on 125 inmates in 17 houses.
The worker explained that doing a head count (round) is easier during the day shift because inmates are awake and you can count them easily. There is no need to depress the light switch. However on the midnight shift the inmates are in bed in their respective rooms after 10:30pm on weekdays. This means that the officer is required to go into a house, move the curtain on each room and depress a push button light-switch and hold it until they can confirm the inmate’s presence in their bed. This can mean sometimes depressing the switch for a good 10 seconds. Some inmates are on the top bunk bed and she is required to look up while pulling the curtain with one hand and pressing the light switch with the other. This is displayed in picture 8, 13, 14 and 15 (filed as exhibit 1). The worker explained that there are approximately 94 rooms that she needs to look into every two hours while working the midnight shift.
The worker explained that some of the light switches are close to the door and so she doesn’t need to reach much (picture 8) but other times they are nearly 17 inches away from the door frame and this requires her to reach out and hold on to the switch as demonstrated in picture 15 and 18. Half the switches are on the left side and the other half are on the right. The worker explained that it is this reaching and holding the light switch that has caused significant shoulder problems for her. The worker explained that after her previously allowed right shoulder claim from 2010 the employer did move some switches to the left side and also moved some closer to the door so that it would not require excessive reaching. They only moved the switches that were deemed more than 17 inches from the door frame – This has been filed as exhibit 2.
The worker is also required to carry a diecter (cylindrical wand) and has to hit the two diecter points in every house to record what time she passed through that point. On the midnight shift she would have to go into 17 houses and this means that she would have to touch 34 diecter points. There are also heavy fire doors that need to be opened and closed and this requires pushing and pulling.
The worker explained that it takes her approximately 15-20 minutes to patrol the 17 houses. After that she would do some exterior perimeter walks, patrols or paperwork until it is time for her next round.
In terms of non-work related activities the worker explained that she was coaching her child’s baseball team in 2011 but she was not playing any baseball herself. She also confirmed that she is a swimmer and was engaged in recreational swimming at the time of reporting the injury. The worker testified that prior to the summer of 2011 she did not have any left shoulder problems.
Since the injury the worker explained that she no longer works the midnight shift and as such has not been having any further significant problems with her shoulder. She stated that late last year she was required to do an early morning count which required her to look into the room and depress the light switch and she immediately started having shoulder pain again. She has since gone for physiotherapy and also had another ultrasound taken.
With respect to the number of midnight shifts she worked in the summer of 2012, the worker did not dispute the information provided by the employer and documented in memorandum 4, however the representative stated that rather than looking at the 4 months in question she wanted to look at the whole year and that repetitive strain injuries generally come on slowly. She noted that over the course of a year before the injury, the worker worked a total of 45 midnight shifts which is a significant number of night shifts.
The worker representative submitted that the 20 minute walk is physically demanding work and the worker is required to open 30 heavy doors, there is pushing and pulling and there are curtains that have to be moved with one arm while having the other arm outstretched pressing a light switch. She argued that there is a causal relationship between the physical demands of the job and the worker’s injuries. She does not dispute that there are some degenerative findings noted on the ultra sound but argues that the thin skull principle should apply and the work duties were a significant contributory factor.
In reviewing the medical records, I note that the worker presented at the emergency hospital on August 27, 2011 with a two month history of left anterior shoulder pain due to repetitive overhead work activities. The initial Health Professional’s Report (Form 8) completed by the emergency physician provided a diagnosis of left shoulder impingement and early adhesive capsulitis.
The worker was then seen by a specialist on September 6, 2011. It appears that this referral was actually for a non-compensable low back problem but the worker provided a history left shoulder pain which she had been experiencing for about a week. The specialist noted previous right rotator cuff problems related to repetitive injury. On examination, the worker’s range of motion was limited to 30 degrees actively and 170 degrees passively, with significant discomfort beyond 30 degrees. External and internal rotation was also uncomfortable and the drop-arm test was positive. The specialist suspected the worker had left shoulder impingement syndrome, with the possibility of a rotator cuff tear. She felt that an ultrasound report would shed more light on the matter.
The ultrasound report of September 6, 2011 confirmed the presence of several calcifications in distal supraspinatus with a total length of about 1.4 cm. A 6mm calcification was seen in the distal left infraspinatus. There was no evidence of a tear.
Following the ultrasound there are no other specialist reports on file. The worker testified that she did not see this specialist again and has not seen any other specialist. The physiotherapy report of September 16, 2011 did not provide a diagnosis other than left shoulder pain and noted a positive impingement test.
The employer provided some additional medical records. One of them was an ultrasound report of both shoulders taken on August 11, 2010, presumably for the worker’s previous right shoulder claim. This report notes a clinical history of persistent shoulder pain related to baseball playing in the past. This ultrasound report confirmed the presence of calcific lesions on both sides which were consistent with degenerative disease. Another ultrasound report of the right shoulder dated August 8, 2010 confirmed calcific tendonitis in the right shoulder.
There was also a letter from the family doctor dated November 8, 2011 addressed to the WSIB. The doctor writes that she disagrees with the WSIB’s decision to deny the worker entitlement to her left shoulder disability and argues that the presence of calcifications does not imply a “condition.” She notes that the worker has never had any problems with her shoulder before despite a very physically active work and home life and it was not until she engaged in repetitive activities on the night shift that she developed pain and disability.
I have no concerns with the worker’s testimony and accept that it represents an accurate explanation of the duties that she performed. The worker has an honest belief that her left shoulder problems are directly related to her job duties on the midnight shift.
I do not dispute that the mechanism described by the worker would certainly cause some discomfort in the shoulders especially since there are homes where the light switches are over 17 inches away from the door frame. However when looking at exhibit 2, I note that there are also many rooms where the light switches are less than 10 inches away from the door frame and, like the worker testified, some are on the right and others are on the left. Although the worker has to conduct a round in 20 minutes, she is not exposed to any shoulder risk factors for the remaining hour and 40 minutes. Considering that the rounds are conducted every 2 hours, at most the worker would conduct five rounds during the midnight shift which would equate to less than 2 hours per shift.
I find the issue of causation is a practical question of fact that requires a reasoned explanation for the cause of the worker’s impairment. Causation does not, however, need to be determined with scientific certainty. It is appropriate to use common sense to infer causation.
The evidence in this case supports that a preliminary diagnosis of impingement and adhesive capsulitis was made in August 2011 based on a clinical examination only. The subsequent ultrasound report in September 2011 showed no abnormalities other than the presence of calcification. This was also noted on the August 2010 pre-accident ultrasound report which noted calcification on both shoulders. Although there is no specialist report following the September 2011 ultrasound to provide a definitive diagnosis, it is safe to infer that the worker’s symptoms are in keeping with calcific tendonitis since this condition is present in both shoulders. No other diagnostic testing report or medical opinion has been submitted to provide an alternative explanation for the worker’s symptoms.
The worker’s family doctor stated that the presence of calcification does not imply a condition. I am uncertain what the doctor means by this statement but her letter of November 8, 2011 provides no alternative explanation as to what the worker’s actual diagnosis might be considering she disputes the symptoms to be related to calcification.
Dr. Uhthoff, in his medical discussion paper prepared for WSIAT titled “Shoulder Injury and Disability” notes the following with respect to calcific tendonitis:
This condition is neither caused by work nor aggravated by any particular activity. It affects females more often. Calcific deposits in the opposite shoulder occur in up to 40% of patients. Calcific tendinitis cannot be attributed to factors associated with work. The thickening of the tendon caused by the calcific deposit often leads to an impingement syndrome (emphasis added).
I prefer the opinion of Dr. Uhthoff on this issue because he is an orthopaedic specialist and he has specifically addressed the question of whether this diagnosis is work-related. Consistent with Dr. Uhthoff’s opinion, not only does the worker have bilateral shoulder calcification but, there is also evidence of impingement syndrome which has been documented on file which reinforces my conclusion that the worker’s symptoms are in keeping with this diagnosis.
It is worth noting that various WSIAT decisions (decision numbers 473/99, 291/00, 2404/08, 1076/11 and 163/13) have denied entitlement to calcific tendonitis on the basis that this condition cannot be caused by work related factors.
I have also considered the worker representative’s alternative request that the job duties aggravated the underlying condition. I do not dispute that the activities described by the worker on the midnight shift certainly made her more symptomatic, but the onset of symptoms while performing certain activities does not establish a work related nexus. I am unable to conclude from the evidence that these activities advanced, worsened or accelerated the underlying pathology. Besides, Dr. Uhthoff’s opinion is that calcific tendonitis is neither caused nor aggravated by work activities. Again, I want to stress that the only reason I prefer the opinion of Dr. Uhthoff is because there is no other medical report on file that addresses the findings noted on the ultrasound.
In light of the above, I am not satisfied that the evidence supports, on the balance of probabilities, the conclusion that the worker’s duties on the midnight shift caused or made a significant contribution to the onset of her left shoulder problems and as such, her appeal regrettably cannot be allowed.
CONCLUSION
The worker does not have initial entitlement for a left shoulder impairment.
The worker’s appeal is denied.
DATED: March 11, 2015
Mr. H. Mohamed
Appeals Resolution Officer
Appeals Services Division