WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision number: 20180030
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer (Not participating)
HEARING: June 6, 2018 Toronto, Ontario
HEARD by: M. Kimevski, Appeals Resolution Officer
DATED July 4, 2018
ISSUE
The worker objects to the Eligibility Adjudicator's January 16, 2015 decision denying initial entitlement.
BACKGROUND
The claim was established for a claimed onset of right shoulder problems in December 2014. The worker, then a 31 year old night crew clerk for a grocery store attributed the right shoulder injury to stocking shelves.
The Eligibility Adjudicator issued a letter dated January 16, 2015 advising that it could not be established that the claimed right rotator cuff tendonitis was caused by the work duties. The decision was reconsidered and confirmed in a further letter dated February 28, 2018.
The case was referred to the Appeals Services Division for further consideration and it was determined that an oral hearing was necessary to resolve the appeal.
AUTHORITY
Operational Policy
11-01-01 Adjudicative Process
11-01-02 Decision Making
15-02-01 Definition of an Accident
ANALYSIS
In reaching my conclusion I considered all of the available information in the file, the testimony provided and the arguments in the context of the relevant operational policy and legislation. For reasons that will be outlined, I find in favour of the worker.
Arguments
The worker's representative submitted that the work activities were a significant contributing factor to the development of the shoulder injury. It started with a small pain and became difficult to work. It was argued that the duties were repetitive and there was an increase in the workload. Further, while the worker is tall, there was still overhead placement of products.
The employer did not participate in the appeal and thus did not provide any additional information for consideration.
Assessment
Policy 11-01-01 entitled Adjudicative Process outlines that in determining initial entitlement, it is necessary to establish five points: an employer; a worker; a personal work-related injury; proof of accident; and compatibility of the diagnosis to the accident or disablement history. Consideration of proof of accident may include examining whether an accident or disablement situation exists; whether there were witnesses; whether there were discrepancies in the date of accident and the date of layoff; whether there was a delay in the onset of symptoms; and whether there was a delay in seeking medical attention.
The definition of accident, according to policy 15-02-01 entitled Definition of an Accident includes a wilful and intentional act, but not an act of the worker; a chance event resulting from a physical or natural cause; and disablement arising out of and in the course of employment. Disablement includes a condition that emerges over time, or an unexpected result of working duties.
In this case, the worker is claiming for a disablement as a gradual onset for right shoulder problems related to her work duties, which primarily included stocking shelves. In considering the criteria for initial entitlement, it must be established whether the worker's condition arose in the course of the employment and whether these work duties were a significant contributing factor to the worker's right shoulder problem.
The worker testified that she worked on night crew part-time; five days a week on eight hour shifts from 11:30pm to 8:00am. She explained that the lead hand would bring the skids to the floor and the product is set in the isles on carts. Stocking involves seven shelves (including top shelf for overstock); the bottom shelf is at about her ankle and there are two to three shelves that are above her shoulder. The worker is six feet tall and she would use either a three step or a cart to stand on, which gets her up to about the sixth shelf. It would take about six hours to do three isles. If she had time she would do facing (bringing the product to the front to make the shelf look full) and one shift a week she would do signs and labels, which was much easier, she would go along every isle and put labels for sale items.
The worker explained that her symptoms started around the winter (Christmas), first symptoms were mild and then they got worse. They had more products coming in and she developed swelling and pain in her whole left arm, which is when she sought medical attention at the hospital in Bracebridge. She was not offered modified work. Her doctor was away so she saw Dr. Moffat on January 13, 2015. Then her regular doctor put her in a sling for comfort and she applied for Disability and Employment Insurance. She did obtain another job and her shoulder still bothers her.
I found the worker's testimony to be consistent with the information on file and I found the worker to be genuine in her responses. In her initial statement on January 15, 2015 she described her regular duties were to shelve products including dog food, flats of cans and other products. Approximately half her shift was over head placement of products and because of the holidays there was more shelving to do. I recognize she is left handed, but she uses both arms to stock shelves. She has no hobbies and no problems prior to the described onset.
The Employer's Report of Injury/Disease (Form 7) provided a date of accident of December 30, 2014, with reporting on January 2, 2015. The history provided was stocking shelves in grocery on night crew; her shoulder was hurting and gradually got worse. There is an attached statement from the worker's lead hand indicating the worker was complaining of a sore arm, but she didn't know if she hurt it at work. The worker was questioned about this and she indicated there was no specific discussion, she assumed he knew it was from work and there were others who were aware.
Further inquiries through the employer confirmed that the worker had mentioned her arm was sore to co-workers prior to the completion of the Form 7. Further, about half the worker's shift is from waist to above the shoulder and products varies in size and weight (two pounds for a case of chips to 40 pounds of dog food. There appeared to be some discrepancy on the part of the employer in terms of whether the shelving duties had increased; however, I note the owner did confirm that while the summer season is busier, the workload does increase during the holiday season in question.
With respect to the medical information, the worker was seen in hospital on January 2, 2015 for right upper arm pain of four to five days, as well as right hand swelling, which the worker attributed to stocking shelves (overhead activity) on night shift. The diagnosis provided with right rotator cuff tendonitis and the Health Professional's Report (Form 8) confirmed the same.
In considering the circumstances of this case, I find the worker repetitively lifted various weights and objects, sometimes heavy, awkward and overhead for extended periods of time. The evidence also supports that there was an increase in the work at the time of the onset. Consequently, I find the evidence supports that the work duties were a significant contributing factor to the worker's right shoulder condition.
Therefore, entitlement is in order for the right shoulder. I find there is sufficient evidence establishing entitlement to right rotator cuff tendonitis.
CONCLUSION
Initial entitlement is allowed. The operating area is to determine any benefits that may flow from this decision.
The worker's objection is allowed.
DATED July 4, 2018
M. Kimevski
Appeals Resolution Officer
Appeals Services Division