WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150083
DECISION DATE:
July 16, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT:
Employer
REPRESENTED by:
Employer Representative
HEARING:
May 28, 2015 - Toronto, Ontario
HEARD by:
H. Mohamed, Appeals Resolution Officer
ADDITIONAL ATTENDEES:
Cantonese interpreter
Observers (2)
ISSUE
The worker is seeking initial entitlement to a right wrist injury.
BACKGROUND
On February 7, 2014, this then 52 year old assembly line worker for an automotive manufacturing company complained of pain in her right wrist. The worker stated that her supervisor asked her to fold weather strips two times as opposed to the usual one time and this resulted in a gradual increase in pain and swelling over the course of her shift necessitating medical attention. The worker was diagnosed with a right wrist strain/tendonitis and modified work was recommended. The medical information also noted that the worker was suffering from arthritis in her right wrist.
The Eligibility Adjudicator (EA) granted entitlement for a right wrist strain only as per the letter dated March 21, 2014. No benefits were paid as the worker missed no time from work.
The employer requested that initial entitlement be reconsidered on the basis that the worker’s symptoms were related to her pre-existing arthritis. The employer also provided a job description and physical demands analysis (PDA) advising that the last change in the worker’s job duties occurred in November 2013 and there was no change that occurred on the accident date.
In the decision dated August 28, 2014, the EA overturned initial entitlement.
The issue of initial entitlement 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
ANALYSIS
Based on my review of the evidence, I am satisfied that the worker has entitlement to right wrist strain/tendonitis. In arriving at this decision I considered the information in the claim file, the submissions made by both representative’s, the worker’s testimony as well as the relevant sections of the Workplace Safety and Insurance Act (the Act) and the appropriate Operational Policies.
The worker provided her testimony in English and only utilised the interpreter sporadically. The worker stated that she has been employed with the employer for over 17 years and her job at the time of the injury was rear door “DLO.” She explained that she has been doing this job for over 3 years and never had any previous problems. The worker provided a brief description of her job duties however it is not necessary to go into these details since the worker attributed her injury to one specific job function and not to her job duties as a whole.
The worker stated that before February 7, 2014 she would grab a piece of weather strip from the rack, fold it in half and drop it into a box. The weather strip is a long circular piece of rubber that the worker claimed is taller than her (she is 4’9” tall) but is not heavy. Grabbing it and simply folding it once was not an issue for her. She testified that she would normally use two hands to fold the weather strips and would perform this function 450-500 times a shift.
On the date of accident, the worker was advised by her supervisor that she was not performing the fold correctly. The correct way of folding the weather strip according to the SWI (standard work instruction) was to take the weather strip, fold it in half and then fold it in half again, and place it in the box. The worker stated that it was this additional fold that caused her right wrist to swell. She explained that extra fold made it into a “bunch” which was thicker and since she has small hands she had to grip the bunch in the middle with her right hand and place it into the box as opposed to just throwing it in like she was used to. This meant gripping with the right hand longer than usual. Her left hand is holding onto the ends of the weather strip. The worker said that the supervisor sat there and watched her to ensure that she was doing it correctly. The worker stated that she did this for the entire shift however in the last few hours she went to the washroom and noticed that her right wrist was swollen.
The worker was questioned by the employer representative regarding the variation in the mechanism of injury as described to the employer compared to her statement attached to the Worker’s Report of Injury (Form 6). According to the first aid log entry of February 7, 2014, the worker stated that her injury was caused by over stretching her hand as opposed to folding which is what she stated in the Form 6. The worker explained that there is no discrepancy and that when she grabbed the weatherstrip she has to fold it twice and “stuff” it into the box so that the sides of the weather strip were not visible whereas before she would just fold it once and “drop” it in the box and didn’t have to worry about whether a portion of the weather strip was visible or not. This is what she meant by overstretching. She stated that it was both the “folding” and “stuffing” the weather strip that caused her injury.
The worker stated that she went to Dr. ‘L’ (family doctor) and was told she had tendonitis and was given a splint and prescribed voltaren gel. She also had some physiotherapy which is located at her plant and this was helpful. She confirmed that she did not lose any time off work and the employer has provided her with suitable modified job.
The worker acknowledged that she has arthritis in her hand; however she never had any issues performing this job. She stated that she has never had any treatment for her arthritis and actually only found out she had this condition as a result of undergoing a full body bone scan for an unrelated condition a few years back. Upon questioning the worker stated that the arthritis is actually in her fingers not her hand or wrists.
The worker was questioned about a prior wrist injury noted by Dr. L in his progress report of March 21, 2014. The worker could not recall how she got hurt but stated that she had injured the area at the base of her thumb. She stated that it kept swelling so she had some physiotherapy and acupuncture and the problem resolved. She had no problems with her wrist after this until the accident on February 7, 2014. She indicated that her injury on February 7, 2014 was to the opposite side of the thumb, but also on her wrist.
The worker representative submitted that although the worker has pre-existing arthritis, this would constitute a condition and not an impairment as there is no evidence that her arthritis had led to any periods of lost time from work. She noted that the actual diagnosis was tendonitis and this would be compatible with the accident history described by the worker. The representative acknowledged that the weather strips are light however the worker is of a smaller stature with small hands and fingers so the added element of folding the weather strip one more time was a significant contributory factor to the development of her injury. She noted that the worker had to clutch and fold the weather strip and although she used two hands to do this, she had to grip the centre of the weather strip with her right hand and place it inside a box. She feels that the claim should be allowed.
The employer representative took the position that entitlement was correctly denied by the operating area as there is no evidence that folding the weather strip caused the worker’s condition. She argued that there was no accident as defined by Board policy. She noted that there was no change in her job duties which she had been performing for three years and a qualified company ergonomist reviewed the job and concluded that there were no risk factors in the job that would cause such an injury. Both the company doctor and nurse examined the worker and concluded that her symptoms were in keeping with her arthritic condition and not her job duties. She noted that unlike Dr. L, both the company doctor and nurse had an opportunity to review the job function and their opinion should hold more weight than the family doctor who did not see the worker until five days later and did not understand her job duties.
The employer representative noted that initially the worker stated that the injury was caused by “overstretching” and this action would not result in a hand or wrist injury. The worker confirmed that the weather strips were light and acknowledged using both hands in order to fold the weather strips. Noting this, the employer representative questioned why only the right wrist was injured and not the left. In her opinion this supports that her right hand symptoms were related to her arthritic condition. The employer representative concluded by stating that the worker bears the burden to prove her claim and she has failed to this and therefore the claim should remain denied.
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.
The issue in this appeal is whether the worker’s right wrist condition is work-related. The worker’s condition did not arise as a result of a specific incident, and so the issue is whether the condition is a disablement that arose out of and in the course of her employment. To be compensable, it is not enough that the condition result in pain and disability while at work, rather a causal relationship between the disability and the working duties must be determined by examining the compatibility of the process with a diagnosis, contemporaneous evidence and the medical attention and symptoms. In determining this, the primary question is whether it is more likely than not that work was a factor that contributed in a significant way to the development of the condition.
In this case, the evidence supports that on February 7, 2014, the worker complained of swelling in her right wrist which she attributed to the folding of weather strips. The first aid log for that day confirms that the examiner noted swelling and documented it as such. The entry for that date states that the worker was overstretching her hand to grab the weather strips at the same time causing a strain on the wrist while she was twisting it. It should be noted that this entry was written by the examiner and not by the worker. Noting that English is not the worker’s first language, it is plausible that perhaps the worker may have not properly explained herself or the examiner may not have understood the process. The worker clearly explained at the hearing that she only grabs one weather strip at a time yet the examiner noted that the worker grabbed the weather strips “at the same time” which implies that perhaps the examiner didn’t quite understand what the process was or misunderstood the worker.
At the hearing the worker provided a detailed explanation regarding the mechanism of injury which in my view is consistent to her signed Form 6 as well as the first aid entry of February 10, 2014. I found the worker's testimony to be reliable and consistent and accepted her evidence that she was told by a supervisor that she was performing the weather strip fold incorrectly.
I realize that the employer stated that there was no change in job duty but the fact that the worker was performing this particular function incorrectly and then changed her work method to conform to the new SWI is in essence the change that caused the worker’s injury. I accept the worker’s testimony that although she used both hands to handle the weather strip, she utilised the left hand to hold on to the two ends of the weather strip and the right hand to grip the centre. Having to do that one extra fold made the centre of the weather strip more protuberant requiring more forceful gripping with the right hand which was difficult given the worker’s smaller hands. In addition to this, she now had to place the weather strip into the box as opposed to just dropping it in.
The worker was seen by her own doctor on February 12, 2014 and was diagnosed with a right wrist sprain/tendonitis. Based on the mechanism of injury described by the worker I am satisfied that this diagnosis is compatible. Although Dr. L identified the pre-existing arthritis on the Form 8 he did not state that the worker had aggravated her arthritic condition.
Both the employer representative and the EA placed a significant amount of weight on the fact that the worker had arthritis in her hands. Although this is relevant, it is not detrimental to the worker’s claim since having a pre-existing condition is not a bar to entitlement if it can be shown that the work related factors were a significant contributor to the worker’s disability. In this case, the worker lost no time from work and according to the first aid logs, her swelling subsided by February 13, 2014. This is a strong indication that the activities of February 7, 2014 played a significant role in her symptomology and subsequent disability.
The accident was reported immediately, the pain and swelling was also immediate, medical attention was sought right away and in my opinion, the diagnosis of right wrist strain/tendonitis is compatible with the mechanism of injury described by the worker. I am satisfied that all the criteria outlined in policy 11-01-01 have been met and therefore the worker has initial entitlement to her right wrist.
CONCLUSION
The worker has initial entitlement for a right wrist sprain/tendonitis.
The worker’s appeal is allowed.
DATED: June 16, 2015
Mr. H. Mohamed
Appeals Resolution Officer
Appeals Services Division