WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFER DECISION
decision number: 20150080
DECISION DATE: February 26, 2015
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer (not participating)
HEARING: February 20, 2015 - Kitchener, Ontario
HEARD by: K. MacMillan, Appeals Resolution Officer
ADDITIONAL ATTENDEES: Observer
ISSUE
The worker is requesting initial entitlement for a left rotator cuff (RTC) tear.
BACKGROUND
On the weekend of July 6-7, 2013, this then 57 year old team leader (a management position) developed left shoulder pain while emptying “gaylords” full of donated items. The worker verbally reported the injury to the incident employer (IE) on July 8, 2013. A formal written incident report was made on July 22, 2013. There was no lost time. In the late fall of 2013, the worker was required to cover duties which led to increased left shoulder pain. First medical attention took place on November 29, 2013. Left RTC surgery was performed on May 1, 2014. The worker received short term disability (STD) benefits from May 1, 2014 to approximately August 25, 2014.
The Eligibility Adjudicator’s (EA) December 16, 2013 decision denied entitlement to health care benefits (HCB) for the left shoulder. Therefore, the issue of loss of earnings (LOE) benefits is not properly before me.
Eligibility Adjudicator’s decision
The EA determined that proof of accident was not evident due to a five month delay in medical attention.
Worker’s position
The worker argues that the delay in seeking medical attention was not unreasonable.
AUTHORITY
The following Operational Policies apply:
11-01-01 Adjudicative Process
11-01-04 Determining the Date of Injury
15-02-01 Definition of Accident
15-02-02 Accident in the Course of Employment
ANALYSIS
I find for the reasons outlined below that initial entitlement for a tear of the left supraspinatus tendon is in order.
Date of injury
I accept that the date of injury is November 29, 2013. Policy 11-01-04 confirms that the date of injury can refer to the date of an actual accident, of first medical attention, or of diagnosis. In a gradual onset disablement claim, the date of injury is established using the earliest of either the date of first medical attention which led to the diagnosis, or the diagnosis. In this particular case, the worker experienced a gradual onset of left shoulder pain at work over the weekend of July 6-7, 2013. The worker reported the injury to her manager on July 8, 2013.
First medical attention took place on November 29, 2013 when a possible left supraspinatus tear was diagnosed. The ultrasound of January 23, 2014 confirmed a tear of the left supraspinatus tendon. Therefore, I find that policy 11-01-04 requires that the date of injury be established as November 29, 2013.
Initial entitlement
I find that the required criteria for initial entitlement are met. Policy 15-02-01 defines the term accident as including a disablement arising out of and in the course of employment. Disablement includes a condition that emerges gradually over time. Policy 11-01-01 outlines that an allowable claim requires a personal work-related injury, proof of accident, and compatibility of diagnosis to disablement history.
Personal work-related injury
A personal work-related injury occurred over the period of July 6-7, 2013. Policy 15-02-02 states that a personal injury by accident occurs in the course of employment if the place, time and activity indicate that the accident was work-related. In this case, the worker experienced left shoulder pain while performing her assigned duties during her regular shift at her regular employment location. Therefore, I accept that there is a personal work-related injury that occurred in the course of employment.
Proof of accident
I find that proof of accident is established. Policy 11-01-01 allows decision-makers to consider the following when examining proof of accident:
Does a disablement situation exist?
Are there any witnesses?
Are there any discrepancies in the date of accident/disablement and the start of lost time?
Was there any delay in the onset of symptoms or in seeking medical attention?
a) Disablement situation
I accept that a disablement situation occurred in the course of employment. The worker testified that she had never emptied a gaylord prior to the weekend of July 6-7, 2013. The worker reported a gradual onset of left shoulder pain after emptying gaylords over July 6-7, 2013. Therefore, I am satisfied that the worker reported a gradual onset of left shoulder pain after performing unusual duties. As a result, I find that a disablement situation is evident.
b) Witnesses
I find that there is a witness statement which supports proof of accident. The worker testified that she and two other employees emptied the gaylords on July 6-7, 2013. One of those two co-workers provided a witness statement dated January 23, 2015.
The witness statement clearly documents an incident on July 8, 2013 involving the worker emptying gaylords. The witness confirmed that the worker mentioned that her arm hurt and that she was taking pain killers. Two weeks later, the worker again informed the witness that her arm still hurt. I observe that the witness was the Health and Safety Committee member who completed the July 22, 2013 incident report. As a consequence, I accept that there is a witness who confirms the gradual onset of a left shoulder disablement injury.
c) Delay between the date of accident/disablement and start of lost time
In my opinion, the worker self-modified her duties until the left shoulder surgery of May 1, 2014. The worker testified that she did not empty gaylords or receive donations between July 8, 2013 and November 2013. During this period, the worker avoided left shoulder movement that increased her symptoms. The worker testified that an employee quit in approximately November 2013. The worker then assisted in covering the position of door greeter and handled donations for the first time since July 7, 2013.
The worker sought medical attention with her family doctor on November 29, 2013 due to significantly increased left shoulder pain. The doctor provided formal physical restrictions. The worker testified that she returned to similar duties to those she had previously performed in a self-modified capacity. The worker continued to avoid certain left shoulder movements until she had surgery on May 1, 2014. Therefore, I find that there is no delay between the disablement and the start of lost time.
d) Delay in onset of symptoms or medical attention
It is my view that there is sufficient continuity to establish that the July 6-7, 2013 onset of left shoulder pain directly led to the medical attention of November 29, 2013. The worker described “chewing” over-the-counter medication both day and night, as well as using her hot tub daily. Additionally, the worker’s July 24, 2013 email to the corporate Health and Safety contact confirms that she continued to have a sore shoulder. An undated site summary report states that the worker was on limited duties due to working with the gaylords.
The worker testified that she did not handle donations between the onset of left shoulder symptoms and shortly prior to seeking medical attention on November 29, 2013. Therefore, I accept that the worker self-modified and self-treated until she began to handle donations again in approximately November 2013. I observe that there was no significant delay in medical attention after the increase in left shoulder pain in November 2013. As outlined above, the accepted date of injury is November 29, 2013. Therefore, I am satisfied that the delay in medical attention was not unreasonable.
Compatibility
I find that there is compatibility between the disablement history and the diagnosis of a partial thickness tear of the left supraspinatus tendon.
The left shoulder ultrasound of January 27, 2014 shows a high-grade full-thickness tear of the supraspinatus tendon. The May 1, 2014 operative report confirms a postoperative diagnosis of a left high-grade partial-thickness articular surface rotator cuff tendon tear. The operative report describes a normal articular surface in the left shoulder and partial-thickness tearing of the anterior (front) portion of the supraspinatus tendon.
The worker testified that she and two other employees emptied the gaylords for approximately four to five hours on July 6, 2013 and possibly seven hours on July 8, 2013. The worker explained that she and one of the other employees did the majority of the work as the third employee was “very tiny”.
The worker is 5’2” (or 62”) tall and left hand dominant. The Ministry of Labour (MOL) field visit report of May 29, 2014 confirms that large, bulky items must be removed from a large, square cardboard box container called a gaylord. The MOL report verifies that the gaylords are 47” x 42” x 39.5” and that employees must reach over the lip of the gaylord at approximately 45 inches from the floor level.
The MOL ergonomist indicates that removing and lifting items from the gaylord represents a risk for musculoskeletal injuries. The family doctor’s report of August 18, 2014 confirms that the worker had never been treated for a left shoulder injury between 1990 and July 2013. The family doctor also provides the opinion that the medical reports do not show any underlying degeneration of the left supraspinatus tendon.
I accept that compatibility is evident between the duties performed on July 6-7, 2013 and the surgical diagnosis of a partial-thickness tear of the left supraspinatus. The incident job duties involved repetitive above-shoulder reaching and lifting to remove donations which could consist of heavy, bulky or large objects. Accordingly, I find that compatibility exists for a tear of the left supraspinatus tendon and the resulting surgery of May 1, 2014.
CONCLUSION
I conclude that there is initial entitlement for a tear of the left supraspinatus tendon.
Entitlement is in order for the left rotator cuff (RTC) surgery of May 1, 2014.
The worker’s objection is allowed.
DATED February 26, 2015
K. MacMillan
Appeals Resolution Officer
Appeals Services Division