WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20150013 Decision Date: May 8, 2015 Objecting Party: Worker Represented by: Worker Representative Respondent: Employer Hearing: April 23, 2015 - Hamilton, Ontario Heard by: V. Advent, Appeals Resolution Officer Additional Attendees: Employer Witness
ISSUE
The worker is objecting to the denial of initial entitlement for bilateral de Quervain’s tenosynovitis/tendonitis.
BACKGROUND
On November 17, 2012, this then 50 year old worker reported a gradual onset of bilateral hand and thumb symptoms that she related to her employment as a dealer for a casino.
On December 13, 2012, the eligibility adjudicator concluded the diagnosis of de Quervain’s tendonitis was not compatible with the worker’s job duties.
The worker is objecting to the denial of initial entitlement and maintains her injury resulted from her employment.
AUTHORITY
The following operational policies apply:
11-01-01 – Adjudicative Process 15-02-02 – Definition of an Accident
ANALYSIS
To allow initial entitlement, there must be evidence of a personal work related injury, proof of accident and compatibility of the diagnosis to the accident or disablement history. The evidence must establish the work activities were a significant contributing factor in the development of the injury. In my view, the balance of evidence supports the bilateral de Quervain’s tenosynovitis is the result of the worker’s job duties.
The definition of accident, according to operational policy, includes a wilful and intentional act, but not an act of the worker; a chance event resulting from a physical or natural cause; and disablement arising out of and in the course of employment. Disablement includes a condition that emerges over time, or an unexpected result of working duties.
It is important to note that the presumption clause does not apply when assessing disablement cases. Therefore, the onus is on the worker to prove that the injury arose out of the employment. It is not sufficient to establish a possibility of a relationship with the workplace activities. The evidence must establish, on a balance of probabilities, that the work duties made a significant contribution to the development of the condition.
The worker was employed as a casino dealer, on a full time basis, since October 2002. She testified that she developed right hand symptoms some time in 2011. She estimated her left hand symptoms developed approximately one year later. In November 2011, she spoke to her employer and it was agreed that she would no longer deal blackjack as she experienced increased symptoms when shuffling. However, the worker testified that her symptoms did not improve significantly when blackjack dealing was removed.
Once the claim was established, in November 2012, the worker was entirely removed from dealing and was provided alternate work until May 2013 when it was no longer available. The worker had been off work since May 2013 and is receiving long term disability benefits.
The worker initially sought medical attention on November 20, 2011 and was diagnosed with right hand tendonitis. While the physician did not complete a report, the notes indicate the worker used her right hand for repetitive movements while working as a dealer. In January 2012, the worker was referred for an EMG study rule out carpal tunnel syndrome. The worker was advised not to deal blackjack until further notice.
On March 27, 2012, an EMG study was reported as normal. The worker also testified that she had an ultrasound and an x-ray which ruled out osteoarthritis. On July 19, 2012, the physician provided a diagnosis of de Quervain’s tendonitis.
The worker testified that she saw the surgeon initially in July 2012. At the time of this visit, the surgeon advised the worker that she should report the injury to the Workplace Safety and Insurance Board (WSIB). However, the worker testified that she did not feel this was necessary as she was still working. In November 2012, the worker formally reported the work injury to her supervisor who directed her to obtain a report from her physician. At that time, the claim was established.
On May 1, 2013, the worker was assessed by a plastic surgeon. The report does reference a visit one year early. The surgeon reported the worker had some tendonitis and this may be work related as she was a dealer at the casino. While the report does not specifically rule out de Quervains’s tenosynovitis, it was noted the Finkelstein’s test was negative.
Both the worker and the employer’s witness provided consistent testimony regarding the nature of the worker’s job duties. The worker testified that she predominantly worked at the craps table and blackjack table.
While working at the craps table, the worker would rotate through three positions for twenty minutes each and then have a twenty minute break. One position involved using a light bamboo cane to retrieve the dice. This individual is also responsible for collecting and distributing chips, but only from one area of the table. The worker testified this position is at a slower pace.
The two remaining positions involve collecting and distributing chips for up to sixteen players (eight per employee). The worker described these positions as very fast paced and would require her to constantly hold a stack of chips in both hands. The worker would remove her hands from the playing area for a few seconds while the dice are rolled. She would then resume collecting and distributing chips, with both hands, only pausing to calculate odds when required. However, she would be constantly gripping the chips in her hands.
When dealing at a blackjack table, the worker predominantly worked in the VIP lounge, which required her to manually shuffle the cards. The employer’s witness testified that the worker would shuffle six decks of cards. The worker would place the cards in piles on the table and pick up sections approximately equal to one deck. The cards must lay flat on the table which would require the worker to use her thumbs to shuffle. This process would be completed six times until all of the cards are shuffled. The entire process is repeated again until all the cards have been shuffled twice. The employer reported the shuffling would take two to four minutes and would be repeated three to five times per hour.
Once the cards are shuffled, the worker would place them in the shoe. She would pause to allow the players to place their bets. She would then pull the cards with one hand and deal them with her other hand. The worker would collect and distribute chips and retrieve the used cards. She would repeat these activities throughout her shift working 60 minutes and then having a 20 minute break.
The employer’s witness testified that the pace of the games is controlled by the dealer, as all the bets have to paid or picked up prior to proceeding to the next round. However, it was acknowledged that the pace can be very fast.
The worker did work on other tables, as detailed in the schedules that were provided for two months prior to March 28, 2012 and two months prior to November 16, 2011, but not as frequent. As outlined in the testimony, the worker was not dealing blackjack after November 2011 as she was being accommodated even though the claim was not established.
The file record contains a number of Physical Demands Analyses (PDA) for casino games including blackjack and craps. With the exception of roulette, the PDAs indicated the essential duties required constant gripping and handling of cards. A PDA for craps was not included, but the testimony supports the worker would be constantly gripping chips.
The employer has submitted the job duties do not involve forceful and repetitive movement. However, medical evidence supports that risk factors for de Quervain’s tenosynovitis include repetitive hand and wrist movement. It is not necessary that the activity be forceful. However, it is recognized that some force would likely be applied when holding pile of chips while trying to distribute them in a fast paced environment. There is no evidence of any other risk factors including any trauma to wrists or evidence of osteoarthritis. The worker denied participating in any other hobbies or sports that could contribute to this condition.
While the surgeon’s report has only indicated the injury may be work related, the surgeon recommended the worker appeal the decision and he was willing to provide information to the adjudicator. In my view, this substantiates the surgeon was of the opinion that the injury was work related. Furthermore, the family physician’s initial notes outlined that the worker performed repetitive work and recommended a removal from dealing blackjack. In my view, this substantiates the family physician also felt there was a causal relationship.
I have considered there was a significant delay in the worker reporting the injury as work related. The worker testified that she did not feel it was necessary to inform WSIB as she was not missing any time from work. There is no record that the worker had any previous work related injuries. As such, it is reasonable for her to not realize a claim should be reported even if it did not result in any lost time form work.
I have also considered that the worker did inform her employer of her condition and provided a note requesting modified work in November 2011. The worker’s testimony indicated she was not sure what about her work was causing her symptoms, but that the pain increased with certain work activities. It is recognized, in the case of a disablement, a worker may not have a clear understanding of the cause of her symptoms. It is reasonable that she would have required her employer or her physician to provide her with some direction. In my view, the delay in formally reporting the injury has been adequately explained.
Having considered the evidence, I find the worker’s job duties involved a considerable amount of gripping, pinching and hand movements when dealing and handling chips. While the worker’s job duties are rotated and she has a break every hour, the majority of her job duties involved repetitive movement of both hands. The worker performed these duties for a prolonged period of time which would increase the likelihood of developing a repetitive strain injury. In my view, on the balance of probabilities, the evidence supports there is compatibility between the worker’s job duties and the development of de Quervain’s tenosynovitis/tendonitis.
CONCLUSION
I conclude the worker has initial entitlement for bilateral de Quervain’s tenosynovitis/tendonitis relating to her job duties as dealer. I have not made a determination on loss of earnings given the lack of any medical reporting beyond May 1, 2013.
The worker’s objection is allowed.
DATED May 8, 2015
V. Advent Appeals Resolution Officer Appeals Services Division