WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20160011
Decision Date: November 28, 2016
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer (not participating)
REPRESENTED by: Employer Representative
ORAL HEARING: Toronto, Ontario
HEARD by: H. Mohamed, Appeals Resolution Officer
ISSUE
The worker, through her representative, seeks the following:
Recognition of a permanent impairment for the right shoulder following a 2002 workplace injury.
Entitlement to the right shoulder rotator cuff tears including surgery under this claim. Or, in the alternative, entitlement to the right shoulder tears under a new claim.
BACKGROUND
On December 10, 2002, this then 42 year old general labourer at a poultry processing plant reported pain in her right elbow and shoulder due to the repetitive nature of her job duties. Medical information indicated the worker had been complaining of these symptoms for over a year. Entitlement was accepted for a muscular strain of the right elbow and shoulder. The worker did not miss any time off work as the employer was able to provide modified duties.
In April 2003 the worker was provided with a permanent new job in the box room which involved loading small flat boxes onto a conveyor belt and labelling empty boxes. She continued performing these job duties until November 2012. The worker also provided annual medical reports from her family physician supporting the continuation of modified duties.
In October 2010 an MRI of the right shoulder revealed a full thickness tear of the infraspinatus tendon and a partial tear of the supraspinatus tendon. The worker went on to have a rotator cuff repair in February 12, 2013. The worker requested entitlement to the shoulder tears as well as the surgery.
In a decision dated January 10, 2013, the Secondary Entitlement Case Manager denied the surgery on the basis that entitlement in this claim had been limited to a right shoulder and elbow strain only and there was no entitlement for the rotator cuff tears.
The worker representative objected to this decision and requested that the operating area accept entitlement to the shoulder tears as being caused by the pre-injury job duties under this claim or as a new claim. The representative also requested that a permanent impairment for the right should have been recognized many years ago given the duration of the claim.
In a decision dated May 12, 2016, the Case Manager (CM) confirmed that entitlement in this case was correctly granted for a shoulder and elbow strain and that the job duties the worker performed in 2002 (pre-accident) and from 2003 onwards did not cause the rotator cuff tears. Furthermore, the CM noted that the worker likely recovered from her workplace injury and there was no evidence of a permanent impairment. Finally, the CM stated that neither the worker nor the employer had ever reported a new accident and therefore entitlement to the tears could not be considered under a new claim either. The worker objected to this decision.
As such, the issue to be determined in this appeal is whether the worker has entitlement to the right shoulder tears under this claim or, in the alternative, under a new claim and whether the evidence supports a permanent right shoulder impairment.
AUTHORITY
Workplace Safety and Insurance Act (WSIA), 1997
Operational policy:
11-01-02 - Decision-Making
11-01-05 - Determining Permanent Impairment
15-02-05 - Recurrences
15-05-04 - Secondary Conditions
Workplace Safety and Insurance Appeals Tribunal (WSIAT) medical discussion paper prepared by Dr. Uhthoff titled “Shoulder Injury and Disability”
ANALYSIS
1. Does the worker have entitlement to a permanent right shoulder impairment?
For the reasons that follow, I find on the balance of probabilities that the worker likely has a permanent right shoulder impairment with respect to her 2002 injury and is entitled to a Non-Economic Loss (NEL) assessment. Based on the medical evidence, the worker likely reached Maximum Medical Recovery (MMR) on May 27, 2003.
Under the WSIA a worker who suffers a permanent impairment as the result of a workplace accident is entitled to a NEL award as compensation for that permanent impairment. The WSIA defines “impairment” and “permanent impairment” as follows:
“Impairment” means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss; “Permanent impairment” means impairment that continues to exist after the worker reaches maximum medical recovery.
The worker representative submitted that the WSIB accepted entitlement to the right shoulder and elbow as a gradual onset injury. The worker never recovered from her right shoulder symptoms and the employer provided modified duties (or what they considered light work) from 2003 onwards. She noted the worker sought medical attention from her family doctor on a consistent basis as confirmed in the family doctor’s chart notes in the claim file. She noted that the WSIB paid for the cortisone injections as well as the Functional Abilities Form’s (FAF’s) that were provided to the claim file over the years. There are also numerous memorandums on file to suggest the operating area knew the worker was being permanently accommodated and that her impairment was permanent. They even granted health care benefits as late as 2010. She submitted that the evidence clearly supports entitlement to a permanent impairment given that the worker’s symptoms have persisted beyond the usual healing time for a strain type injury.
It is worth noting right from the outset that the issue of initial entitlement is not before me. The operating area accepted that the worker’s pre-accident job duties caused the worker’s right elbow and shoulder injuries and therefore my analysis is strictly limited to whether the worker has a “physical or functional abnormality or loss” beyond the MMR date which impairs her ability to carry on as before.
The worker testified that she started working for the employer in 1976 as a packager primarily packaging chicken. In 1997 she started working at another plant and her job involved packaging hot dogs into boxes. The job consisted of different rotations. She had to visually inspect the hotdogs and remove the poor quality products off the line (this is known as the Piano and Multivac rotation). Another component of the job included removing hotdogs from the scrap table and dumping it into a plastic bin which required her to lift and dump the contents (known as rework) and finally she had to “palletize” which involved taking boxes weighing 10 kgs from the conveyor onto a skid. The worker confirmed she performed these duties from 1997 to 2003 and testified the work was fast paced but she had no issues in performing them.
The worker said that around 2002 she reported a right shoulder and elbow injury which was accepted by the WSIB. Her symptoms included pain in her right shoulder and elbow with numbness and tingling in her arms. She saw her family doctor who referred her to a specialist.
The worker advised she attended physiotherapy for approximately 3 months and while her elbow symptoms resolved, her right shoulder pain continued.
According to the Worker’s Report of Injury/Disease (Form 6) dated January 29, 2003 the worker reported pain in her right upper arm and elbow. She noted that the pain was from the job that she does but particularly when she changes the machine it hurts more “because I change the position.” The worker indicated that she has had this pain before but never reported it thinking that it would go away. The worker was asked to explain exactly what she attributed her original injury to and she responded that it was her general job in packaging but primarily to one particular machine which required her to twist her body in an awkward manner to the point that she would come home in severe pain. The worker explained this machine was only utilised when the regular machine broke down.
In reviewing the medical information in the claim file I note that Dr. Israelian’s report dated August 22, 2002 states that the worker has been complaining of pain in the right shoulder with an area of numbness around the T6-T8 region. Physical examination was normal aside from numbness to pin prick and temperature around this region which appeared to project a dermatomal pattern. He felt a nerve in the shoulder girdle may be responsible for her symptoms. An MRI of the cervical and thoracic spine was carried out on September 27, 2002 but was unremarkable. The right shoulder was not imaged.
Dr. Weisleder’s consultation report of January 27, 2003 notes that the worker presented with right upper extremity pain for approximately one year’s duration. He noted that the worker’s symptoms had worsened over the past three months and point to the “right parathoracic muscles as the source of her symptoms.” The worker stated that the pain would radiate from there to her neck and down her right upper extremity all the way down to her right 4th and 5th digit. She reported weakness in her right forearm and hand. On examination, he noted the worker was tender over the right parathoracic muscles. Abduction of the right shoulder was 150 degrees, internal rotation was to T12 and external rotation was 30 degrees. Impingement sign was negative. He concluded that the worker’s pain was likely muscular in nature and he did not think it involved her rotator cuff. He recommended physiotherapy to treat the shoulder girdle muscles.
Dr. Rhijn completed a Physician’s First Report (Form 8) dated January 28, 2003 noting that the worker had pain in her right trapezoid region, upper arm and tennis elbow pain. He provided a diagnosis of myofascial pain and recommended physiotherapy.
The physiotherapy report of February 13, 2003 noted the history as gradual onset of right shoulder, elbow and hand pain with pins and needles in the fingers. On examination he noted a “tight” median nerve and a tender right upper shoulder and right elbow. He provided a diagnosis of shoulder/hand syndrome and lateral epicondylitis.
Dr. Weisleder’s follow up report of May 27, 2003 notes that the worker had plateaued with physiotherapy treatment and had seen an improvement with respect to her elbow pain. There was no improvement in her right shoulder pain and she reported ongoing pain radiating from her neck to her right hand. She also reported numbness in the posterior aspect of her right shoulder. He notes the worker has diffuse regional pain and recommended she be seen by Dr. Dyke for sympathetic blocks.
While there is no consultation report from Dr. Dyke on file, there is a note dated June 12, 2003 stating that the worker did receive treatment from him that day. The worker testified that she had a cortisone injection in her shoulder which really helped and lasted over four years before the pain started again. She started taking cortisone injections again in 2010 but they only last 3-4 months.
In terms of work activities, the worker testified that following completion of physiotherapy in 2003 she was told to avoid any heavy lifting or pushing/pulling. Based on these restrictions, she went back to her pre-accident job duties however she was only performing piano and multivac jobs. She performed this job for a few months and then asked her employer if she could be moved to the box room because she thought it would be a lighter position. The employer accommodated the worker’s request and she has remained in the box room since then.
The worker stated that she continued to have right shoulder problems even after moving to the box room and she would still see her family doctor over the years. She continued to have shoulder restrictions and since the box room was the easiest job in the plant, she felt she didn’t have anywhere else she could go so she continued working in the box room.
According to memorandum 6 dated April 3, 2008 the CM was willing to refer the worker for a Non-Economic Loss (NEL) assessment however wanted to request an updated medical report from the worker’s family physician. Dr. Rhijn. provided a letter to the CM dated August 22, 2010 regarding the continuity of the worker’s complaints since 2003. He notes that she has been having shoulder symptoms since the initial injury and has remained on light duties. He notes that there is no history of any pre-existing similar problems.
I note that the Eligibility Adjudicator (EA) in memorandum 10 granted entitlement to health care benefits based on this report but concluded the worker has not reached MMR yet.
I also note that Dr. Rhijn has been submitting FAF’s on an annual basis since 2003 indicating that the worker is to avoid repetitive right shoulder movements and any above shoulder activities. Dr. Rhijn’s progress report (Form 26) dated November 19, 2007 notes the worker suffers from chronic right shoulder pain which he believes is now permanent. I have also reviewed Dr. Rhijn’s chart notes and there is continuity of right shoulder complaints since the accident.
My assessment of the evidence leads me to conclude that while the worker’s elbow strain resolved by May 2003, her right shoulder symptoms that have never abated. The worker was accommodated by her employer in the box room on a permanent basis and based on the memorandums on file the operating area was aware of this. Entitlement to the cortisone injection in June 2003 and August 2010 was accepted by the operating area. The Nurse Consultant also authorized the payment for the 2010 MRI of the right shoulder as documented in memorandum 11. Chart notes from the family doctor also support ongoing right shoulder complaints. I agree with the worker representative that the usual expected recovery time from a minor strain injury would be six to eight weeks with physiotherapy. In this case, the worker’s symptoms have continued for many years.
Consequently, I am satisfied on a balance of probabilities that the worker should have been granted a permanent impairment for her right shoulder strain years ago. In my opinion, Dr. Weisleder’s report dated May 27, 2003 should be used as the MMR date and the worker should be referred for a NEL assessment.
2. Does the worker have entitlement to right rotator cuff tears including surgery?
For the reasons that follow, I am not convinced that the rotator cuff tears detected on the October 26, 2010 MRI were either caused or aggravated by the compensable accident. I am however persuaded on the balance of probabilities that the modified duties in the box room significantly contributed to the development of these tears and therefore I am granting entitlement to the tears as a secondary condition under this claim.
The worker representative submitted that the rotator cuff tears were likely caused at the time of the original accident and were further aggravated by the overhead reaching the worker was engaged in while working in the box room. She noted that both Dr. Rhijn and Dr. Weisleder consider the tears to be work related and there is no alternative opinion on file. She therefore requested that entitlement be considered under the recurrence policy or in the alternative, as a new claim.
There is no evidence to suggest that the worker sustained a rotator cuff tear at the time of the original accident. Neither Dr. Israelian nor Dr. Weisleder suspected any rotator cuff tears. Dr. Weisleder notes in his report dated January 27, 2003 that the worker was able to abduct her right shoulder 150° which would have been difficult for her to do with a rotator cuff tear. There was also no impingement sign detected. Dr. Weisleder went as far as to state that the worker’s pain was muscular in nature and he did not think the problem involved her rotator cuff tendon. No evidence has been provided by the representative to support the suggestion that the tears occurred as a result of performing the pre-accident duties.
As to whether the tears can be considered under the recurrence policy, I note Policy 15-02-05 states that a worker may be entitled to benefits for a recurrence of a work-related injury/disease if the worker experiences a significant deterioration that does not result from a significant new incident/exposure, and is clinically compatible with the original injury/disease. With respect to clinical compatibility, the policy asks the decision maker to consider whether it’s the same body parts and functions that are affected given that similar clinical conditions indicate that the current problem is likely related to the original incident while dissimilar conditions indicate there is no recurrence.
In this case while the same shoulder is affected in both instances, I am unable to conclude that the tears would constitute a recurrence of the December 2002 workplace injury (right shoulder strain) given that there is no clinical compatibility between the diagnoses. The above policy makes it very clear that there must be clinical compatibility in order for entitlement to be extended under the recurrence policy. As such, I am unable to extend entitlement to the tears under the recurrence policy.
However, policy 15-05-04 titled “Secondary Conditions” states that workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits to compensate for the further aggravation of the work-related impairment or for new injuries. In other words, if the evidence shows that the tears were either caused by the compensable work related injury or as a result of the modified duties performed due to the compensable work related injury, entitlement can be extended under this policy.
The worker testified that although the box room was considered light work, it still posed risk factors for her right shoulder. The worker explained that the job in the box room involved placing flat pieces of cardboard into a machine which made boxes. The worker said that the flat cardboard came on a skid which was located behind the machine. They were stacked in bundles of 25 and there were about 1000 pieces on the skid stacked above her head. She claimed in order to reach the top pieces she was required to reach overhead. The worker said she did complain to her employer about this and they reduced it to 800 pieces a skid but this was still slightly above her head and required overhead reaching and lifting. The worker said the employer eventually provided her with a stepladder in 2008 so it was easier for her to reach the top pile. The worker explained she would take about 20-25 pieces off the skid at a time and feed it into the machine. Once they come out she would place a label on the box and push the empty box down the line. The worker stated back in 2003 she would go through about four skids in a shift.
During questioning the worker confirmed that overhead reaching was only required in order to obtain the top three levels of boxes (top 200-250 boxes) however once the pile got shorter, it was no longer above her head and therefore she no longer had to do any overhead reaching.
The worker stated that sometimes the box machine would break down (about twice a week) and this would mean she would have to tape the bottom of the box by hand with a tape gun. This would involve having the shoulder at above waist level and she would tape across the bottom of the box from left to right. Again the worker confirmed this was only done when the machine broke down.
In 2010 she had an MRI and was told she had a shoulder tear. The worker stated that she continued working in the box room after the MRI because there is no other job with the employer that is lighter than the box room.
Dr. Weisleder notes in his August 17, 2010 report that the worker was seen with respect to her right shoulder and reported chronic right shoulder pain. He notes that a cortisone injection was administered 4 years ago and this gave her relief at that time. On examination, shoulder flexion was 90°, abduction was100° (it was 150° when seen in 2003) internal rotation was to L5 and external rotation was 30°. He noted that impingement sign was positive (it was negative in 2003). He injected the worker’s right shoulder with Depo-Medrol.
An MRI of the right shoulder dated October 26, 2010 noted a full thickness tear of the infraspinatus tendon without significant retraction. There was also tendinopathy in the supraspinatus and infraspinatus tendons with a probable small partial thickness tear of the anterior aspect of the supraspinatus tendon on the bursal side. The MRI also noted the worker had a downward sloping acromion.
The worker stated that there was a Return to Work (RTW) meeting in November 2012 with a Return to Work Specialist (RTWS) from the WSIB who reviewed all the jobs and made some recommendations. In reviewing this report I note that the RTWS found the job in the box room to be physically suitable however clearly indicated that the job still required some overhead lifting and recommended that the worker be provided with a step-ladder.
The worker confirmed she had shoulder surgery in February 2013 and after returning from her surgery she was provided work in eviscerating department for a few weeks but the worker requested that she be put back in the box room.
I note that Dr. Weisleder states in his report of January 17, 2013 that the worker’s right shoulder rotator cuff tears are “compensable.” The worker’s family doctor, Dr. Rhijn also provides the same opinion in his letter addressed to the CM dated January 31, 2013.
In arriving at my decision I have also considered the WSIAT Medical Discussion Paper titled “Shoulder Injury and Disability” prepared by Dr. Uhthoff. The paper describes what a rotator cuff tear involves and how it may be caused. The paper indicates that the causes tend to differ, depending on the age of the individual. While severe trauma is more likely the cause in younger individuals, a rotator cuff tear in middle age or older people can be caused by lesser effort or even a trivial trauma. This paper seems to support the view that a rotator cuff tear in a middle aged person may be caused by minor events such as lifting and that no significant trauma is required to develop rotator cuff tear in this demographic.
Having examined the evidence, I find the job duties performed by the worker in the box room, particularly the overhead reaching to obtain the flat boxes from the top of the skid, made a significant contribution to the development of the rotator cuff tears. While overhead lifting was only required for the top 250 boxes, I note that the worker went through approximately four skids a day and therefore she was required to lift over 1000 boxes per shift overhead. The worker testified she lifted 25 boxes at a time so over the course of an average shift the worker performed an overhead lift approximately 40 times. While this would not be considered significantly repetitive, I find that this activity materially contributed to the worker’s tears. It is important to keep in mind that a significant contribution need not be the sole contribution, but must be more than just a minimal contribution.
There is also no evidence the worker was engaged in any overhead activities outside of work that posed the same degree of risk as the box room. Furthermore, the MRI did not show any evidence of acromioclavicular joint or glenohumeral joint arthritis or degeneration. The operative report confirms that there was no debridement carried out. This means that the tears were unlikely to have been caused due to any degenerative factors. The MRI did show however a downward sloping acromion for which an acromioplasty was performed. According to medical literature a downward sloping acromion increases the risk of impingement and predisposes a worker to sustaining a tear. However the existence of a pre-existing condition does not disqualify the worker from being granted entitlement to the tears. In my view, the overhead lifting in the box room coupled with the downward sloping acromion made the worker more susceptible to a rotator cuff tear than the average worker. The fact remains that causation does not need to be established with scientific precision. Rather, the law requires that causation be answered by employing ordinary common sense based on reasonable inferences.
Consequently, I find on the balance of probabilities that the worker has entitlement to the rotator cuff tears including the surgery as a secondary condition under this claim. The worker is also entitled to loss of earnings (LOE) benefits for the time she was off work as a result of her surgery.
CONCLUSION
Based on the foregoing reasons I conclude:
The worker has entitlement to a permanent impairment for a right shoulder strain under this claim. The worker reached MMR for this condition on May 27, 2003 and is entitled to a NEL assessment.
The worker has entitlement to the right shoulder rotator cuff tears, including surgery, as a secondary condition under this claim. The worker is also entitled to LOE benefits from the date of her surgery until she went back to work on modified duties.
The worker’s appeal is allowed.
DATED: November 28, 2016
Mr. H. Mohamed
Appeals Resolution Officer
Appeals Services Division