Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
DECISION NUMBER: 20180045
OBJECTING PARTY: Worker
REPRESENTED by: Paralegal
RESPONDENT: Employer
REPRESENTED by: Paralegal
HEARING: Hearing in Writing
HEARD by: K. MacMillan, Appeals Resolution Officer
DATE: August 17, 2018
ISSUE
The worker is objecting to the Eligibility Adjudicator’s November 16, 2017 decision to deny entitlement to the November 8, 2017 right shoulder surgery and related benefits.
BACKGROUND
On March 4, 2016 this then-53 year old general helper reported a right shoulder injury. The Appeals Resolution Officer (ARO) decision of July 14, 2017 provides a concise history which will not be repeated. The prior ARO granted entitlement for right shoulder tendonitis / repetitive strain injury (RSI).
On October 25, 2017, the worker informed an Eligibility Adjudicator that she was scheduled for arthroscopic surgery. Right shoulder arthroscopic debridement and acromioplasty was performed on November 8, 2017. The worker participated in post-surgical physiotherapy and returned to full duties on February 27, 2018.
The Eligibility Adjudicator denied entitlement to the surgery based on a physician’s case file review dated November 10, 2017. The reconsideration letter of April 6, 2018 upheld the denial of entitlement based on a subsequent file review by the same orthopaedic consultant. The final reconsideration letter of June 20, 2018 confirmed the original November 16, 2017 decision.
AUTHORITY
The following Operational Policies apply:
11-01-01 Adjudicative Process
15-02-05 Recurrences (November 3, 2014)
ANALYSIS
I find that entitlement to the November 8, 2017 surgery is not in order. My reasons for this finding are outlined below. In reaching this determination, I have carefully reviewed the worker representative’s May 28, 2018 written submission as well as the employer representative’s submission of July 21, 2018.
Job duties
I find that there is insufficient evidence of prolonged or repetitive work duties at or above shoulder height.
The worker representative highlights that the Occupational Health Clinics for Ontario Workers (OHCOW) ergonomist’s December 21, 2016 report concluded that the worker’s employment exposed her to hazards related to tendonitis. The worker representative maintains that the OHCOW report suggests that exposure to such tasks can play a significant role in the development of musculoskeletal disorders.
I acknowledge the employer representative’s argument that the OHCOW ergonomist’s December 21, 2016 report was based on the worker’s reporting and not a direct observation of the work environment. Nevertheless, I remain bound by the findings of the prior ARO who accepted that the OHCOW ergonomic report was consistent with the worker’s description to the Eligibility Adjudicator as well as the worker’s written details provided on the Form 6.
I note that the December 21, 2016 OHCOW ergonomic report documents that the worker is approximately 5’7” tall. The prior ARO decision confirms that food preparation is done at waist level on countertops. The ARO also documents that the worker described the most aggravating factor for her shoulder as being the pushing/pulling of French fry trays out of the oven in an awkward space. Moreover, the July 14, 2017 ARO decision clarifies that the worker would place/remove trays of French fries from the oven located between her waist and shoulder height. The ARO documents that over a 40-minute lunch time period the worker would place three trays of fries, one at a time, into the oven and remove them once cooked.
I have considered that the orthopaedic surgeons’ February 23, 2018 report indicates that the worker was required to reach over the top of the oven to do her job and serve. The report also indicates that the worker was required to reach over chest and shoulder level with heavy activities. On the other hand, I must consider that the worker would be required to move three trays of fries during the course of 40 minutes. Additionally, I find that the OHCOW ergonomic report does not identify any activities at or above shoulder level on a prolonged or frequent basis.
For example, the December 21, 2016 report itemizes the worker’s daily job requirements. The report indicates that during the first hour the worker would be working between waist and chest height. The worker would then be at the cash station for approximately ten minutes before starting to prepare meals for lunch break. The worker would prepare soup with full pots weighing between 10 – 12 lbs. The worker would also prepare French fries as described above.
Next, the worker would perform tasks at the steam table which is approximately waist high. Once the food is on the plate/bowl, the worker places it on top of the steam table which is positioned at approximately shoulder height. The worker serves approximately 8 – 12 students with soup daily and 8 – 10 students with chicken burgers daily, in addition to fries and gravy. In my view, serving such items is neither a repetitive nor heavy activity.
Finally, the worker performs clean-up including a rinsing station with a wand that must be pulled down from above shoulder level. Once the items are dry, the worker must put away up to 10 large baking trays onto a rack ranging from the ground level to above shoulder. The trays weight approximately 15 lbs.
Based on this information, I am not persuaded that the worker’s duties involve heavy repetitive activities or repetitive/prolonged activities at or above shoulder level. I appreciate that the job duties do involve some activities at or above shoulder level. All the same, it is my view that any of the activities performed at or above shoulder level are not prolonged in duration and occur on an occasional basis over the course of the worker’s daily shift.
Compatibility
I find that the surgery performed on November 8, 2017 is not clinically compatible with the work-related injury.
Specifically, I have considered that Policy 11-01-01 requires compatibility of diagnosis with disablement history. Policy 15-02-05 similarly requires clinical compatibility with the original injury. Both policies provide the authority for decision-makers to seek a clinical opinion in determining if compatibility is evident. I observe that the case record contains physician case file reviews performed by the same orthopaedic surgeon dated November 10, 2017 and April 5, 2018.
The worker representative suggests that the opinion provided within the two physician’s case file reviews should be afforded less weight as the worker was not assessed in person. It is presented that the resulting opinion is not supported by the surgical findings. In contrast, the worker representative highlights that the treating orthopaedic surgeon has provided written confirmation of clinical compatibility.
The employer representative maintains that the opinion presented in the physician’s case file reviews should be afforded more weight, as the opinions are based on the entire case record including an accurate representation of the worker’s job duties. According to the employer representative, the treating orthopaedic surgeon’s opinion completely relied on the understanding that the worker’s job was repetitive and involved at or above shoulder level “heavy lifting”.
In assessing the evidence, I note that the employer representative has provided a portion of the Workplace Safety and Insurance Appeals Tribunal (WSIAT) medical discussion paper entitled Shoulder Injury and Disability. The discussion paper suggests that maintenance of specific shoulder postures (such as holding a tool while working overhead) are associated with the risk of developing an occupational shoulder disorder. The position of the arm must be greater than 60 degrees of flexion (forward elevation) or abduction.
I have also considered that both the worker’s surgeon and the physician reviewing the case file are orthopaedic surgeons. The case record documents that the two orthopaedic surgeons had a telephone conversation on April 5, 2018. The treating orthopaedic surgeon verified that the surgery involved biceps tenotomy, rotator cuff debridement and subacromial decompression via acromioplasty. While the treating orthopaedic surgeon reiterated the opinion provided in the February 23, 2018 report, the orthopaedic surgeon performing the file review opined that the surgery and related findings were all in keeping with a degenerative etiology.
There is general agreement that the December 14, 2016 MRI showed a type 1 – 2 (downward sloping) acromion. The treating orthopaedic surgeon’s report of February 23, 2018 confirms that the subacromial space showed significant bursa inflammation and that the anterior and lateral acromion was tight. An osteophyte identified on the lateral clavicle was removed. Thus, the question to be addressed is if the surgical findings of significant biceps pathology, several partial thickness rotator cuff tears, and subacromial impingement are clinically compatible with the worker’s job duties.
As outlined above, I accept that the worker’s job duties did not involve prolonged or repetitive duties at or above shoulder level. Therefore, I am not persuaded that the clinical findings addressed within the November 8, 2017 surgery are causally related to the disablement history or the original injury involving right shoulder tendonitis/RSI. Accordingly, I find that the policy criterion of clinical compatibility required under Policies 11-01-01 and 15-02-05 is not met. Hence, I find that there can be no entitlement to the November 8, 2017 right shoulder surgery.
CONCLUSION
I conclude that the November 8, 2017 right shoulder surgery is not clinically compatible with the accepted workplace injury.
Entitlement to the November 8, 2017 surgery, including associated benefits, is not in order.
The worker’s objection is denied.
DATED: August 17, 2018
K. MacMillan
Appeals Resolution Officer
Appeals Services Division