Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision number: 20170013
OBJECTING PARTY: Worker REPRESENTED by: Worker Rep
RESPONDENT: Employer REPRESENTED by: Employer Rep
ISSUE
Denial of initial entitlement.
In preliminary matters the worker representative noted the worker is seeking entitlement to the left shoulder as the neck is not an ongoing issue.
BACKGROUND
This Customer Service Representative related a left shoulder and neck injury to the work she was performing of lifting boxes 40 to 60 lbs and stocking shelves in the first week of June 2010. The worker performed modified work and rotator cuff repair surgery was performed on May 28, 2012.
The operating area sent a letter to the worker dated May 30, 2012 which denied initial entitlement. The decision maker noted the injuries were not reported as work related and therefore there was insufficient evidence to establish the neck and left shoulder conditions arose out of employment.
AUTHORITY
Operational Policy Manual (OPM) Document:
15-02-01 Definition of an Accident
ANALYSIS
In my determination of entitlement to the left shoulder and neck, I reviewed the record, evidence, policy and submissions. There is an absence of any detailed explanation supporting the relationship between the June 2010 incident and work performed with the left shoulder rotator cuff condition. I prefer the opinion set out in the Workplace Safety and Insurance Tribunal (WSIAT) Discussion Paper Shoulder and Disability on the issue of causation. I do not find in favour of the worker and I have set out my reasons in more detail below.
Workplace Party Submissions
It is the position of the worker representative the worker had a specific traumatic event in June 2010 and the worker’s left shoulder injury is a result of the one specific event it is not a disablement situation. The worker representative submits the injury is not a result of degenerative changes in her shoulder as there is no evidence of degeneration. The x-ray of her shoulder indicates the worker has minimal degenerative changes noted.
The employer representative argued the worker’s left shoulder injury did not arise out of the June 2010 incident and there is no medical opinion supporting a relationship between a work-related injury and a left shoulder rotator cuff tear. The employer representative submits that for causal connection to be established there must be sufficient overhead work in the job of a Customer Service Representative however the worker’s testimony confirms there is minimal overhead work.
Medical Information
Dr. Ostroski’s report dated May 28, 2012 indicates the worker was coming in for left shoulder surgery. The worker has a large rotator cuff tear as a result of a work injury confirmed in an MRI. The worker has a positive impingement sign.
The September 14, 2010 x-ray of the left shoulder reveals the worker has minimal degenerative changes involving the AC joint. There was very slight spurring along the medial aspect of the humeral head.
Worker’s Testimony
The worker recalls a very specific incident on June 5, 2010 when she picked up a case of whisky and felt a pain in her shoulder and neck. The shoulder pain was extreme and did not subside. She asked a co-worker to change shifts the next day. She remained home on the weekend following the injury. She then discussed paper work with the employer. She discussed the injury with her supervisor who noted he had a similar injury. She did not know about filing a WSIB claim and she did not report it until she was to have surgery. She has not had any prior claims. She has not had any prior left shoulder surgeries.
She disagrees with the statements on the Form 7 she did not say the injury could have happened at home and she did discuss the injury with her Supervisor.
The worker testified she performed the following work duties as a Customer Service Representative:
The worker works about 25 to 30 hours per week generally a 4 to 5 hour shift from 4:00 pm or 5:00 pm to 9:00 pm.
Generally the job consisted of cashier duties and stocking shelves. She would perform the cashier duties between two and three hours daily but at times could be on cash for the entire shift. She would use her right hand to manage the cash register and slide a bottle along and bag it. She would also do some carry outs for customers. Other duties also consisted of cleaning counters and mopping floors nightly.
To stock shelves she would go to the basement and lift cases of wine, liquor or beer from the floor onto a conveyor which was approximately at waist height or lower. Cases weighed anywhere between 50 to 60 lbs each.
The conveyor brings the boxes upstairs where she would cut open the top and stack the shelves. The shelves in the middle of the store are at or below shoulder level, and the shelves around the walls of the store can be much higher. To stock these shelves she would use a ladder and still be reaching overhead to stock.
Reporting
The worker completed the Worker’s Report of Injury/Disease (Form 6) on April 25, 2012. The worker noted the week of June 5-8, 2010 she was stocking shelves and doing lifting of 50 to 60 lbs boxes off a track, or picking up off the floor to load onto a track and then stock (liquor bottles) onto shelves. She felt an extreme pain in her neck and shoulder and she first thought it was a strain but it did not go away. She had numbness down into her arm.
The Employer’s Report of Injury/Disease (Form 7) noted:
The worker reported discomfort in her upper back and left shoulder in June 2010 but it was not attributed to her work. The worker stated it could have happened at home.
The worker provided functional abilities in August 2010 for modified work but thought the injury was not work related despite the advice from her physiotherapist. The worker was accommodated for her non-occupational condition.
The employers first awareness of an injury was a submission of the Health Practioners First Report (Form 8) dated April 13, 2012.
While there is some discrepancies around the reporting of the injury regarding whether it was reported as work related, it is not a determinative factor here. The evidence shows when the injury occurred it was assumed it would go away. I acknowledge an incident occurred while the worker was working however the worker’s pain was evidence of the underlying pre-existing condition but it did not contribute in any material way to the left shoulder rotator cuff tear.
Relevant Policy
It is important to note that in disablement injuries either a gradual onset or an unexpected result of working duties, the onus is on the worker to establish that the injury arose out of and in the course of employment. Below is an excerpt from the Workplace Safety and Insurance act Section 13(1) of the Act, also referred to as the threshold statement in Section 13(2) the presumption clause:
13(1) a worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.
13(2) if the accident arises out of the worker’s employment, it is presumed to have occurred in the course of employment unless the contrary is shown. If it occurs in the course of the worker’s employment it is presumed to have arisen out of the employment unless the contrary is shown.
The following is an excerpt from Policy from 15-02-01 – Definition of Accident:
The definition of disablement includes a condition that emerges gradually over time and in an unexpected result of working duties.
The question before me is did the worker’s left rotator cuff tear arise from the lifting of 50 to 60 lbs case of whisky in order to successfully rebut the presumption clause. In order to accept entitlement there must be compatibility of the left rotator cuff tear with the mechanism of injury. There is an absence of any medical information or rationale to support the relationship. The specialist indicates the left shoulder rotator cuff tear was a result of a work injury but I interpret this to be a recounting of the statement taken from the worker regarding the history of onset. The worker is merely explaining the events which she believes caused the left shoulder rotator cuff tear. It is not a medical opinion as there is no explanation of how this type of lifting incident could have caused the rotator cuff tear or for that matter the worker’s impingement syndrome.
In order to shed some light on the nature of the worker’s injuries I referenced the Workplace Safety and Insurance Tribunal Medical Discussion Paper titled Shoulder Injury dated October 2010 and Disability by Dr. Hans K. Uhthoff, Orthopaedic Surgeon. Below is an excerpt from the discussion paper:
C. Impingement Syndrome
The Impingement Syndrome is caused by a squeezing of the contents of the space bordered on one side by the coraco-acromial arch and the other side by the humeral head. Both structures are visible on plain x-rays. The contents consist of soft tissues, namely the rotator cuff, in particular the supraspinatus tendon, and the subacromial bursa. The squeezing of these contents in an unyielding space can have two causes:
A thickening of the contents, a swelling of the tendon (tendonitis) and/or a swelling of the bursa (bursitis).
A decrease of the space, mostly caused by bony outgrowths, such as acromial spurs, osteophytes of the acromio-clavicular joint and/or osteophytes of the humeral head.
It is sometimes argued that impingement may cause a rotator cuff tear through wear and tear. This is an exception. In most instances, the tendon is the site of the original disease, leading to a tear due to the structural weakening of the tendon; the resulting impingement will make the situation worse. In fact, outgrowths of the acromion (bony spurs) form in response to a continued pressure of thickened tendon against the acromial arch. This is important, as the argument often goes that spurs lead to a tendinitis; spurs may aggravate the existing tendinitis. Degenerative processes inside the rotator cuff can be made worse by repeated activities with the hands at shoulder level or above it or by operating vibrating tools. Such activities, when performed repeatedly over a period lasting months and years may also affect the acromioclavicular joint leading to a joint degeneration and the formation of osteophytes. Impingement affects both genders equally. Impingement can start at an early age (around age 20) particularly in athletes. It can develop spontaneously in older people (around 50 to 60 years of age).
Is there a relationship between an isolated injury to and recurrent disorders of the shoulder and impingement syndrome?
I do not think that an isolated injury can induce an impingement syndrome. However, recurrent episodes and, more so, repetitive work and/or sports activities can cause an impingement (a disorder), usually secondary to wear and tear of the rotator cuff tendons.
D. Rotator Cuff Tear (Figure 7)
As stated before, a severe acute trauma can cause a tear, particularly in younger individuals. In that instance, a piece of bone from the humeral head (greater tuberosity) is usually avulsed together with the tendon. Obviously, this must be considered as an injury. As stated above, in middle aged or older people, changes inside the tendon (degenerative changes) make the tendon weaker to a point where the tear may occur spontaneously with no trauma or with trivial trauma. In this instance we are dealing with a chronic tear, a disorder. Work requiring repetitive or prolonged use of arms above the shoulder level (either flexion or abduction) may accelerate the progress of degenerative tendinitis and thus, may predispose to tears (work-related). Small tears may not cause any symptoms. Bigger tears cause a weakness and usually cause pain, mostly on abduction. The symptoms are usually made worse when attempting to lift the arm away from the body and the weakness is felt when performing activities with the arm at shoulder level or above it. A change of work is often required. Although degenerative tears of rotator cuffs of both shoulders are not uncommon, symptoms rarely occur at the same time.
In order to establish a relationship between the worker’s left rotator cuff tear and impingement there must be severe acute trauma or repetitive or prolonged above the shoulder level work. In my view the lifting of the 50 lbs case is not a severe acute trauma. I am further convinced by the fact the worker went home after the June 5, 2010 incident changed one shift and then continued to perform modified work while seeking physiotherapy treatment. There was no need for immediate or acute care following the incident. In the absence of a severe acute trauma there must be repetitive or prolonged above the shoulder level work. The worker’s testimony confirms there is some overhead work but I would not characterize it as prolonged or repetitive.
The balance of evidence does not support the worker’s left shoulder rotator cuff tear and impingement syndrome arose out of and in the course of employment, the worker has not successfully rebutted the presumption clause. Initial entitlement to the left shoulder is denied.
CONCLUSION
Initial entitlement to the left shoulder rotator cuff tear and impingement syndrome is denied.
The worker’s objection is denied.
DATED April 19, 2017
P. Jones Appeals Resolution Officer Appeals Services Division