WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20180007
OBJECTING PARTY: Worker
REPRESENTED BY: Barrister & Solicitor
RESPONDENT: Employer
REPRESENTED BY: Representative
HEARING: January 30, 2018
HEARD BY: M. Haughton, Appeals Resolution Officer
Date of Decision: February 28, 2018
ISSUE
The worker is objecting to the Eligibility Adjudicator’s (EA) decision dated March 8, 2017 which denied initial entitlement to a right shoulder injury. The EA reconsidered and upheld this decision on July 18, 2017.
BACKGROUND
On September 20, 2016, this now 62 year old letter carrier experienced an onset of right shoulder pain which she attributed to carrying heavy bags of mail on a new route. The worker had been assigned to a new route on September 19, 2016
The worker reported the right shoulder pain to her employer on September 21, 2016 and sought medical attention. The worker lost time from work on September 21, 2016 and returned to modified work on September 22, 2016. On November 18, 2016 the worker reported an increase in right shoulder pain and lost further time from work.
On March 8, 2017 the EA denied entitlement to the right shoulder as it could not be established that the worker’s right shoulder condition resulted from her job duties. The EA noted the worker did not report a specific incident to explain the onset of symptoms. The EA also indicated that while the worker was assigned to a new route her job duties had not changed.
On July 18, 2017 the EA reconsidered the March 8, 2017 decision taking into consideration new medical information. The EA upheld the March 8, 2017 decision.
The worker’s objection to the EA’s decision of March 8, 2017 and subsequent reconsideration of that decision on July 18, 2017 forms the basis for this appeal.
AUTHORITY
Workplace Safety and Insurance Act, 1997 (The Act), Section 13(2)
Operational Policy
Policy 11-01-01 Adjudicative Process
Policy 15-02-01 Definition of an Accident
PRELIMINARY ISSUE
Prior to commencing the hearing the worker representative clarified that while the worker initially reported injury to other areas of her body, the worker was seeking entitlement to the right shoulder only.
ANALYSIS
I reviewed all information on file and have taken into consideration the worker’s testimony and the relevant policy and legislation. Based on the evidence before me, I find that the worker does not have initial entitlement to the right shoulder. My findings and analysis are explained below.
The Appeal Readiness Form (ARF) dated August 30, 2017 referenced prior submissions from the worker’s representative dated March 27, 2017 and May 9, 2017. The Intent to Object Form dated March 27, 2017 noted on September 20, 2016 the worker was required to carry heavy mail bags which included four (4) heavy sets of flyers in addition to her regular mail delivery. The worker was assigned to a new route which resulted in an increase in the number of houses she delivered to and required her to walk for significantly longer periods of time. The representative also noted the worker may have some pre-existing conditions in her right shoulder; however, previously there was no impact on the worker’s ability to perform her job duties.
On the Respondent Form dated October 27, 2017 the employer submitted that the worker’s right shoulder injury is not related to a change in her work duties as since August 2016, all routes are designed for 480 minutes per day.
The Employer’s Report of Injury (Form 7) dated February 28, 2017 indicated that the worker came to work on September 21, 2016 and reported that she was feeling stiff and sore as a result of heavy volume of mail and flyers on September 20, 2016. The worker reported pain in her bilateral shoulders, bilateral hips and left knee. The Form 7 noted the worker stated that her muscles began to ache around 2:00PM on September 20, 2016 due to the weight of the mail volume and the length of her route.
The Worker’s Report of Injury (Form 6) indicated that on September 20, 2016 her route was long and the volume of mail was heavy. The worker stated that the last section of her route was heavy, but she was able to complete it. When the worker woke up on September 21, 2016 she felt pain in her bilateral shoulder, groin and left knee. The worker indicated she also had difficulty walking.
The worker testified that she has been employed with the employer since April 2001. She began working with the employer in Toronto and transferred to Sault Ste. Marie in 2007. The worker stated that as a result of a restructure she was assigned to a new route on
September 19, 2016. She reported that she had been through three (3) restructures in approximately seven (7) years and her route got longer after each restructure.
The worker stated that she begins her shift by sorting the mail and putting it in order for delivery. The mail is then tied, tagged and put in drop bags for delivery to the drop boxes. Delivery drivers then deliver the sorted mail to the drop boxes. The worker noted that when sorting the mail some shelves she needs to access are overhead while others are at waist height. The worker reported that it takes approximately two (2) hours for her to sort the mail for her route. The worker leaves the mail station at 10:30 with a mail satchel and takes a taxi to the first stop on her route. The worker delivers mail for 5 to 6 hours per day. On her route she accesses various drop boxes to pick up more mail for delivery. The worker stated she requested two (2) additional drop boxes be added to her route; however, only one (1) drop box was approved.
An email from the employer noted that during volume count the mail bags are weighed without flyers. When the delivery routes are built a drop box is placed every 20 pounds of mail to take into account the weight of the flyers.
The worker stated that her old route required her to deliver to 817 points of call (367 houses, 405 apartments and 45 businesses). Her new route included 597 points of call (512 houses,
84 apartments and 1 business). The worker acknowledged that there was a reduction in the number of apartments and businesses she delivered to, but stated that the increase in houses meant that she had to walk further and carry the heavy mail bags for a longer period of time. The worker also stated that the change in her route resulted in her carrying more mail and an increase in her work hours. The worker indicated that delivering to apartment buildings was easier as you delivered more mail to one location.
The worker also stated that the volume of mail and the volume and weight of the flyers increased at various points through the year. She indicated that September generally has a higher volume for both mail and flyers. She also stated that the mail bags were only weighed during the period prior to restructuring.
The employer indicated that in accordance with the worker’s collective agreement, the worker was not required to carry any additional weight as the mail bags did not weigh more than
35 pounds including flyers. The employer also submitted that the worker did not submit a hazard report stating that her mail bags were overweight. It was noted that the worker had previously submitted hazard reports for other issues such as steps and walkways. As noted in
memo A0004, the employer stated the worker was working more hours prior to the route change than after the route change.
During testimony the worker stated September 20, 2016 was a heavy volume day for mail delivery and she was carrying four (4) heavy sets of flyers, each with multiple pages. She reported she picked up a heavy bag full of mail and flyers and felt immediate pain in her right shoulder. The worker indicated she felt this specific lift caused the injury to her shoulder.
The worker stated that she reported the incident to her employer on September 21, 2016. She also sought medical attention at a walk-in clinic on September 21, 2016; however, the medical report from this assessment is not on file for review. The submission attached to the Form 7 indicated the worker provided the employer with a completed Functional Abilities Form (FAF) on September 22, 2016 which indicated the worker required two (2) days of rest and noted she should only perform sorting duties for her route.
In November 2016 the worker reported a recurrence of right shoulder pain and a new claim was established in error. The EA contacted the worker and as noted in memo A0003, the worker indicated the right shoulder pain was related to this claim. The worker also confirmed the September 20, 2016 accident history stating it was a very heavy mail day and she felt sore when she finished her route. The worker reported that the next morning she had excruciating pain in her left knee and right shoulder.
An MRI of the worker’s right shoulder completed on January 22, 2017 indicated the worker had a moderate degree of subacromial impingement with a tear involving the distal supraspinatus tendon. The worker was also noted to have moderate osteoarthritis of the
acromioclavicular (AC) joint and a moderate degree of subacromial impingement causing thinning of the supraspinatus and infraspinatus tendons.
The worker was seen by an orthopaedic surgeon on February 17, 2017. The worker was noted to have intact right shoulder range of motion. Her resisted external rotation was quite sore and her AC joint was non-tender. The surgeon noted that he had reviewed the MRI of the worker’s right shoulder and opined there was some subacromial fluid as well as some bursal sided supraspinatus tearing; however, the tearing was quite mild and essentially just represented tendinosis more than an actual tear. The worker was also noted to have AC joint arthrosis and a degenerative rotator cuff footprint.
The surgeon noted the worker’s right shoulder was inflamed. Surgical management of the worker’s shoulder was noted to be an option; however, he indicated surgery should be avoided if possible as it would “likely just be a decompression and clean out”. A cortisone injection was recommended to improve the worker’s symptoms. Functional precautions for lifting and repetitive use of the right arm were provided.
The worker was seen by the surgeon again on April 6, 2017. The worker reported some improvement in her right shoulder symptoms after the cortisone injection on February 17, 2017, but her pain had since returned. A right shoulder arthroscopy was recommended. The surgeon opined that the worker’s right shoulder symptoms seemed directly related to an episode of heavy lifting in September 2016.
The worker had right shoulder surgery in May 2017; however, the operative report is not on file for review. The follow up reports indicate the worker had a right shoulder supraspinatus repair. The worker indicated that she remained off work following the surgery until January 29, 2018 when she began a graduated return to work plan.
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 a chance event is an identifiable unintended event which causes an injury. The definition of disablement includes a condition that gradually emerges over time or an unexpected result of working duties.
For a disablement-type injury the worker does not have the benefit of the presumption under Section 13(2) of the WSIA which states if the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the 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. In the case of a disablement, there must be evidence that demonstrates that the disablement arose out of and in the course of employment. There must be a causal relationship between the work being performed and the disablement.
With respect to establishing initial entitlement, operational Policy 11-01-01, Adjudicative Process states that 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.
In this case the worker initially claimed a disablement which gradually emerged as a result of a change in her working duties on September 19, 2016, specifically carrying heavy mail bags. The worker subsequently claimed a disablement which occurred as an unexpected result of her work duties when during testimony the worker provided a new accident history of a specific lifting incident which caused the onset of her right shoulder symptoms.
In review of the claim file evidence I note the Form 6 and Form 7 are consistent in the accident history provided and attribute the worker’s right shoulder symptoms to a change in her route on September 19, 2016 which required her to carry heavier bags of mail. This is also consistent with the accident history the worker provided to the EA as documented in memo A0002 and memo A0003. A medical report dated April 6, 2017 attributed the worker’s right shoulder symptoms to an episode of heavy lifting in September 2016 but did not provide any further specifics.
Noting the consistency between the Form 6, the Form 7 and the memos on the claim file I accept the reported accident history of the worker experiencing right shoulder pain which resulted from carrying heavier mail bags following a change in her route. I find the contemporaneous evidence does not support there was a specific and identifiable lifting incident which caused the onset of the worker’s right shoulder symptoms.
The worker was assigned to a new route on September 19, 2016. While the worker reported the new route was longer and the mail volume was higher, I note the worker was actually delivering to fewer points of call than on her prior route. The worker testified that apartments are easier to deliver to as more mail is dropped off at one location; however, the worker’s points of call were actually reduced from 817 to 597, reducing the overall volume of mail the worker carried.
After the worker was assigned to her new route she requested the employer place two (2) additional drop boxes on the route. The employer approved and placed one (1) drop box. The employer indicated that drop boxes are placedfor every 20 pounds of mail to account for flyers, thus ensuring the mail bags do not exceed 35 pounds. In my view, the need for an additional drop box acknowledged there was a heavier volume of mail on one section of the worker’s route.
The worker sought medical attention for her right shoulder on September 21, 2016; however, the medical report from this assessment is not on file for review and no diagnosis was provided until January 22, 2017 when an MRI of the right shoulder was completed. The diagnoses provided were subacromial impingement with a tear involving the distal supraspinatus tendon and causing thinning of the supraspinatus and infraspinatus tendons and moderate osteoarthritis of the AC joint.
The orthopaedic surgeon reviewed the MRI and opined the tearing was quite mild and essentially represented tendinosis more than an actual tear. The surgeon also noted the worker had AC joint arthrosis and a degenerative rotator cuff footprint.
In review of medical literature tendinosis, osteoarthritis (or arthrosis) and subacromial impingement are degenerative conditions. Tendinosis is a degenerative injury to a tendon caused by wear and tear or chronic overuse. Osteoarthritis is attributed to wear and tear of a joint and occurs when the smooth cartilage that covers the ends of the bones gets worn away, causing the rough bone ends to rub against each other. This leads to irregular motion within the joint and to the development of bone spurs, which are bony growths that form as the bone tries to heal itself. Subacromial impingement is caused by a narrowing of the space which the supraspinatus tendon passes through. This can be caused by bony structures such as subacromial spurs (bony projections from the acromion), osteoarthritic spurs on the acromioclavicular joint and variations in the shape of the acromion. These conditions cannot be caused by the accident mechanism reported by the worker and there is no evidence to suggest that the natural course of these conditions were materially changed or accelerated as a result of the disablement injury.
After two (2) shifts on her new route the worker reported pain in her right shoulder which she attributed to carrying heavier mail bags on the new route. I find the diagnoses of subacromial impingement with a tear involving the distal supraspinatus tendon, thinning of the supraspinatus and infraspinatus tendons and moderate osteoarthritis of the AC joint would not be attributable to the change in job duties the worker described. In the absence of a specific work-related injury, and having regard for the worker’s job duties, I find the worker’s diagnosed right shoulder conditions are not compatible with the accepted accident history.
Consequently, in light of the fact that I have concluded the worker’s accident history is not compatible with the diagnosis provided, I find the worker has not met all five points for an allowable claim, as noted in Policy 11-01-01. As a result, I find the worker does not have entitlement to a right shoulder injury under the claim.
CONCLUSION
The worker does not have initial entitlement to the right shoulder.
The worker’s objection is denied.
DATED February 28, 2018
M. Haughton
Appeals Resolution Officer
Appeals Services Division