20220133

REPRESENTED by:

HEARD by: DATED:

S. JOHNSON, APPEALS RESOLUTION OFFICER OCTOBER 20, 2022

The employer objects to the Eligibility Adjudicator’s decision letter dated July 13, 2021 that allowed initial entitlement to a bilateral wrist repetitive strain injury arising from the nature of the work duties performed in June 2021.

On July 13, 2021, this totes watcher reported to their supervisor with complaints of a gradual onset of bilateral wrist pain they attributed to overexertion while working the watching totes job function. In the Worker’s Report of Injury/Disease (Form 6) dated October 21, 2021, the worker documented the machine was not working in good condition for weeks dating back to late June 2021 that caused too many boxes coming onto the line. The worker was required to lift and twist their wrists.

The worker received first medical treatment on July 23, 2021. In the Attending Physician’s Statement report dated July 23, 2021, the physician diagnosed the worker with a bilateral wrist repetitive strain injury, right greater than left. In this report, the physician documented this was an occupational illness/injury.

In the Employer’s Report of Injury/Disease (Form 7) dated October 19, 2021, the employer documented the worker was performing accommodated duties since 2019 as a tote watcher. The essential duties of this accommodated work included observing and watching the boxes drop from the conveyer into the tote. The worker is required to intermittently spread out the boxes using their hands as they drop into the tote to ensure they will fill the space evenly. Other duties include quality checks, inspection and randomly pick out defective boxes on inspection. The work is self-paced and can be performed sitting or standing.

In a letter dated October 19, 2021, the employer documented the worker has permanent restrictions arising from a work-related right elbow epicondylitis injury for which a 4 percent non-economic loss (NEL) benefit was processed on November 4, 2011 and a non-work related left hand condition summarized below:

Right Elbow (2011)

no heavy lifting (up to 10 kg)
no forceful or repetitive pushing, pulling, lifting or gripping
no repetitive, prolonged or extreme elbow flexion and extension Left Hand (2019)
lift and carry up to 5 lbs
no repetitive movements with the left arm
push and pull loads up to 5 pounds

In a decision letter dated July 13, 2021, the Eligibility Adjudicator allowed initial entitlement to a bilateral wrist repetitive strain injury on its own merits as it was concluded the threshold criteria in the Operational Policy Manual (OPM) Document No. 11-01-01 – Adjudicative Process – were established.

This is the issue for determination.

Operational Policy Manual

Published

11-01-01 Adjudicative Process 15-02-01 Definition of an Accident Section 13(2) Workplace Safety and Insurance Act, 1997

November 3, 2008 October 12, 2004

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Initial Entitlement to Bilateral Wrist Repetitive Strain Injury

I find the worker has initial entitlement to a bilateral wrist repetitive strain injury.

The OPM Document No. 11-01-01 – Adjudicative Process – provides an analytical framework that decision-makers apply when considering a worker’s initial entitlement to benefits. This framework is known as the five-point check system that sets out 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.

There is no dispute the first two criteria in the OPM Document No. 11-01-01 – Adjudicative Process – have been met as there is an employer and a worker.

The issues to be resolved in this worker’s case is the third, fourth and fifth criteria in the OPM Document No. 11-01-01 – Adjudicative Process – that states there must be personal work-related injury, proof of accident and compatibility of diagnosis to accident or disablement history.

Employer Submissions:

In a submission attached to the Appeal Readiness Form dated July 5, 2022, the employer representative submits the threshold criteria in the OPM Document No. 11-01-01 – Adjudicative Process – have not been established and requests the denial of initial entitlement. The following is a summary of the key points raised by the employer representative in support of the denial of initial entitlement:

There are insufficient risk factors to support a bilateral wrist injury arose from the worker’s job duties based on the Occupational Health and Safety Association Ergonomic Guides and National Occupation Classification Physical Demands Definition.
The third, fourth and fifth criteria in the OPM Document No. 11-01-01 – Adjudicative Process – are absent based on the worker’s underlying conditions and not due to the extremely light and non-repetitive duties.
The worker and treating health professionals are uncertain as to the cause of the worker’s numbness symptoms.
The work duties are not heavy and highly repetitive.
The worker’s symptoms are attributable to their pre-existing underlying conditions.

The employer representative pointed out the presumption clause in Section 13(2) of the Workplace Safety and Insurance Act does not apply to disablement situations. The onus is on the worker to demonstrate that the injury both arose out of and occurred in the course of their employment. The employer representative contends the worker has not successfully satisfied this legislative threshold and requests the denial of initial entitlement to a bilateral wrist injury.

Worker Submission:

In a letter dated July 26, 2022, the worker was advised to complete and return the Respondent Form to the WSIB by September 9, 2022.

The Respondent Form was not completed and returned to the WSIB at the time the employer’s appeal was referred to me for my review and determination.

Findings:

Accident History

I first examined the worker’s evidence regarding the onset of their bilateral wrist condition. In the Worker’s Report of Injury/Disease (Form 6) dated October 21, 2021 and in telephone conversations with the Customer Service Representative on October 21, 2021 (CSR Eligibility Template Memo) and the Case Manager on November 25, 2021 (Memo xx) and December 2, 2021 (Memo xx), the worker described the following:

The tote machine was not working in good condition in the weeks prior to reporting to the employer on July 13, 2021.
The machine was malfunctioning and caused the side bin of rejected boxes to fill quicker.
The worker had to lift the side bin to empty the rejected boxes into another bin for sorting.
Empty boxes and candies were filling a tub every 5 minutes.
In normal working conditions, it takes 20 to 25 minutes to fill a 160 kg to 175 kg tote.
They were exposed to lifting 3 to 4 kg of tubs and twisting both wrists more often during the course of an 8 hour shift.
In normal working conditions when the machine was working well, all the worker has to do is just watch the large tote getting full and even out the boxes in the tote using both hands at the end.
The machine was dumping empty boxes into the tote and the worker is responsible to manually dump them into a larger bin.

I accept the worker’s evidence that described they were performing their regular job duties on a malfunctioning machine in the weeks prior to reporting the onset of bilateral wrist pain to the employer on July 13, 2021. The worker’s evidence is consistent with the employer’s evidence. In a telephone conversation with the Case Manager on November 29, 2021 (Memo xx) the employer explained that when the machine malfunctioned, there was an issue with the glue causing some of the boxes to open.

The worker was to put the open boxes into a small tub, sort through them, remove the boxes that were not open and place them back into the tote. The worker was still able to work at their own pace and control the amount of weight lifted while performing this task.

I find the accident history fits squarely within the definition of a disablement due to a condition that emerges gradually over time in the OPM Document No. 15-02-01 – Definition of an Accident. In their evidence documented to the case record, the worker did not describe their bilateral wrist injury resulted from the intentional act of another person or a specific chance event occasioned by a physical or natural cause.

I find there is personal work-related injury to the worker’s bilateral wrist region.

To establish whether there is personal work-related injury to the worker’s bilateral wrist region, it is necessary to assess the specific mechanics of how they performed the work activities as a tote watcher. It is clear that it is not enough that an injury occur in the course of employment. There must be some injuring process, which is part of the worker’s employment, to establish their bilateral wrist condition arose out of their employment.

The essence of the employer representative’s position is that there is no evidence of personal work- related injury based on several factors that include the weights handled, the light nature of the work duties, and the presence of pre-existing conditions. In support of this finding, the employer representative relied upon the Physical Demands Definitions in the National Occupation Classification, Code and the Occupational Health and Safety Association Ergonomic Guides that states a highly repetitive job can be characterized by one of the following:

a cycle time less than 30 seconds
over 1,000 parts per shift, or
more than 50 percent of the cycle time involving the same kind of fundamental cycle.

I prefer the worker’s evidence that described the malfunctioning machine required them to handle the rejected boxes every 5 minutes rather than every 20 to 25 minutes. This change translates into an increase in the frequency of bilateral wrist twisting motions to handle and dump the boxes into a larger tote from every 20 to 25 minutes to every 5 minutes. I find the nature and characteristics of the work duties performed on a malfunctioning machine over the course of a few weeks establishes a work- related injuring process. In my view, what we are dealing with is a worker that was exposed to a significant change in job mechanics in handling the rejected boxes at a frequency of more than 50 percent of the normal cycle time when the machine is working properly. Within a period of a few weeks working on a malfunctioning machine at greater cycle times than usual, the worker developed an onset of bilateral wrist pain.

I considered the employer representative’s position the weights handled, the light nature of the work duties and the worker’s pre-existing conditions are the cause for the worker’s bilateral wrist injury. I am unable to agree with this position. To the extent the items handled were not heavy is not justification in support of the position there is no work-related injuring process. The worker was exposed to handling and lifting boxes at an increased pace to remove the rejected boxes and filled boxes every 5 minutes (12 times per hour). By way of comparison, this process under normal working conditions with a functioning machine is done every 20 to 25 minutes (approximately twice per hour).

I examined the employer representative’s reliance on additional medical research extracted from www.web.md.com and www.mayoclinic.org regarding the worker’s hypothyroidism, bilateral knee arthritis and memory problems attributed to medications as evidence in support of the position there is no personal work-related injury. I am unable to accord any weight to this position and medical research as it is speculative and not grounded in any valid, reliable clinical objective medical evidence.

I prefer the weight of the medical evidence that is consistent with the worker’s evidence (Memo xx) that confirms no history of a prior similar bilateral wrist condition or symptoms. I relied upon the following evidence:

In the Attending Physician’s Statement dated July 23, 2021, the physician documented the worker was never treated for a bilateral wrist repetitive strain injury in the past.
In the Health Professional’s Report (Form 8) dated October 28, 2021, the physician documented there is no history of any pre-existing or other factors that may impact the worker’s recovery from their repetitive strain injury.
A right wrist MRI report dated December 13, 2021 documented there was no comparison study. There was no fracture, no bone marrow edema, no focal osseous lesions and alignment was satisfactory. There was mild triscaphe and first CMC osteoarthritis with marginal osteophytosis and no erosions. The scapholunate and lunotriquetral ligaments appear grossly intact. The median nerves, flexor tendons and other structures of the carpal tunnel are unremarkable. There was mild thickening and edema of the extensor carpi ulnaris tendon consistent with mild tenosynovitis. The working diagnosis was a right wrist ganglion at the ulnar aspect of the wrist and not in the distal radial nerve region. No other mass was demonstrated.
In the WSIB Upper Extremity Specialty Program Comprehensive Assessment Report dated February 8, 2022, the orthopaedic surgeon documented the worker reported with a prior history of right elbow problems (April 2011 permanent restrictions), a neck and right shoulder problem (2001) and a left elbow problem (July 2017). The working occupational diagnosis was a bilateral right hand, index finger repetitive strain injury (possible tendonitis) and a mild left volar wrist strain. Relevant non-occupational diagnoses included possible basal joint and STT arthritis of the right thumb and pre-existing work-related remote right lateral elbow epicondylitis.
In the WSIB Upper Extremity Specialty Program Enhanced Functional Treatment Progress Report dated March 31, 2022, the physiotherapist documented the worker had a recent non-occupational injury on March 21, 2022 of the left D3 digit (mallet fracture reported by the worker) and wearing a splint which limits their ability to use the left hand.
In the WSIB Upper Extremity Specialty Consultation Assessment Report dated June 23, 2022, the plastic surgeon concluded the working occupational diagnosis remained unchanged and included a repetitive strain injury to both wrists, with possible tendonitis and left wrist symptoms have improved at that point. Despite the worker’s dorsal right wrist pain symptoms which is almost allodynic in nature and distribution, the plastic surgeon did not change the working occupational diagnosis and did not recommend nerve blocks based on the examination of the pain distribution.
In the WSIB Upper Extremity Specialty Consultation Assessment Report dated July 12, 2022, the orthopaedic surgeon concluded the working occupational diagnosis consistent with the mechanism of injury included a repetitive strain injury to the right hand and a mild volar left wrist strain that is currently not symptomatic due to not using the left hand from a March 28, 2022 left D5 injury. The worker’s symptoms were presenting as a repetitive strain injury of the right hand that is chronic and irritating the sensory branch of the radial nerve (emphasis added by this Appeals Resolution Officer).

The physician’s evidence is consistent with the medical evidence from the team of experts (orthopaedic surgeon and plastic surgeon) at the WSIB Upper Extremity Specialty Clinic that concluded there is no medical evidence to suggest a pre-existing condition is responsible for the worker’s symptoms of weakness, loss of strength and numbness. It is instructive there was no additional underlying condition causing the worker’s numbness and determined to be a chronic repetitive right wrist strain injury that is irritating the sensory branch of the radial nerve. The orthopaedic surgeon and plastic surgeon are experts with specialized training in examining the causative issue for upper extremity injuries. They had the opportunity to conduct an extensive in-person interview with the worker, obtain their history of injury and complaints, examine the bilateral wrist region and document the clinical objective and subjective findings. The reports are objective, balanced and based on an accurate understanding of the facts and circumstances surrounding this worker’s case as they existed at each clinic follow-up visit.

There is nothing to suggest the worker’s symptoms and pain experiences were due to something other than their work-related bilateral wrist injury.

I considered the employer representative’s position the source of the worker’s complaints of numbness is unknown and could be reasonably attributable to other possible pre-existing conditions, I am unable to agree with this position. In reaching this finding, I relied upon the Adjudicative Advice document entitled Initial Entitlement (Disablement), published January 2005. While not a binding policy, this document is a useful guide for decision-makers to consider when reviewing the issue of work association. This document states, in relevant part:

Workers’ have a varied level of understanding with respect to causation matters and often rely, quite understandably, on their treating physicians and sometimes their employers to guide them in this regard.

To the extent the worker was unable to provide an explanation regarding their symptoms of numbness is not justification in and of itself to deny initial entitlement. As noted in the above document, workers rely on the expertise of others such as their treating physicians and employer to assist in understanding what is causing their symptoms. This is exactly what happened. This worker underwent extensive specialist consultations to determine the exact source or cause for the symptoms of numbness. There is also no dispute the plastic surgeon did not observe any structural, pathological or neurological deficits to account for the worker’s symptoms at the time of the clinic visit on June 23, 2022.

In the absence of clinical objective medical evidence to support the presence of other factors to explain the worker’s symptoms of numbness, I accept the orthopaedic surgeon’s medical opinion expressed in the report dated July 12, 2022 that concluded the worker’s presenting symptoms are a repetitive strain injury of the right hand that is chronic and irritating the sensory branch of the radial nerve. The orthopaedic surgeon did not express a medical opinion to suggest the worker’s symptoms of numbness were due to something other than their work-related bilateral repetitive strain injury causing irritation to the adjacent sensory branch of the radial nerve.

I accept the worker’s evidence that is consistent with the medical evidence that supports the third criterion in the OPM Document No. 11-01-01 – Adjudicative Process – has been met. There is personal work-related injury to the worker’s bilateral wrist region.

Criterion 4: Proof of Accident

I find the fourth criterion in the OPM Document No. 11-01-01 – Adjudicative Process – has been established to support proof of accident. This policy provides the decision-maker with a series of criteria that must be considered to examine the issue of proof of accident as follows:

Does an accident or disablement situation exist?
Are there any witnesses?
Are there discrepancies in the date of accident and the date the worker stopped working?
Was there any delay in the onset of symptoms or in seeking health care attention?

The principle argument put forth by the employer representative is there is no proof of accident based on the following:

The work duties are light and non-repetitive.
The fact that the malfunctioning machine caused an increase in arm use did not translate into an increase in repetition, force or awkward postures.
The worker’s numbness is unknown.
The worker’s symptoms are due to their pre-existing conditions and not a work-related bilateral wrist injury.

I have already examined the above issues on pages four to seven of this decision. There is no need to revisit previously resolved matters.

I find all of the required elements are established to support proof of accident in the OPM Document No. 11-01-01 – Adjudicative Process. In reaching this finding, I relied upon the following facts that have not been put into dispute anywhere in the case record:

The worker was working on a malfunctioning machine that caused an increase in the use of their hands and wrists to handle, lift and dump the boxes.
They developed a gradual onset of bilateral wrist pain due to the change in job mechanics arising from the malfunctioning machine that exposed them to lifting and twisting motions of the wrists they are not normally accustomed to when the machine is working properly.
Within a period of four weeks, the worker developed symptoms and reported to the employer’s onsite nurse on July 13, 2021. The worker advised the onsite nurse that a medical appointment was already booked to see the doctor on July 23, 2021.
The worker received first medical treatment with the physician on July 23, 2021.
In the Attending Physician’s Statement dated July 23, 2021, the physician documented the worker’s bilateral wrist repetitive strain injury arose from their employment.
The worker provides a clear, consistent and accurate onset of their symptoms and accident history to the employer and all health professionals.

Criterion 5: Medical Compatibility

I find the fifth criterion in the OPM Document No. 11-01-01 – Adjudicative Process – has been established as there is medical compatibility of diagnosis to accident/disablement history.

The employer representative provided various reasons in support of the position the work duties performed by the worker was not the significant contributing factor to the development of their bilateral wrist repetitive strain injury. I am unable to agree with this position.

I accord significant weight to the medical evidence previously analysed on page six to seven of this decision that supports the work duties performed on a malfunctioning piece of equipment over the course of a few weeks is the significant contributing factor to the development of a bilateral wrist repetitive strain injury. In all of these medical reports, none of the health professionals who treated and examined this worker expressed a medical opinion to suggest the worker’s bilateral wrist repetitive strain injury was due to something other than the work duties performed on a malfunctioning machine.

I acknowledge the employer representative’s expressed concerns this worker’s symptoms arose from other non-work related medical conditions. I cannot agree with this position as it is speculative and not grounded in valid clinical objective reliable medical evidence. There has been no medical evidence to suggest the worker’s symptoms were due to another medical condition. Rather, as previously noted on page eight of this decision, the orthopaedic surgeon opined the worker’s work-related repetitive strain injury was irritating the sensory branch of the radial nerve. The medical evidence is consistent with the worker’s evidence that confirms no history of a prior similar bilateral wrist condition.

In my view, the mechanism of injury that involved an increase in twisting and lifting with the hands and wrists to execute the tote watch job function on a malfunctioning machine over the course of a few weeks is the significant contributing factor to the development of the worker’s bilateral repetitive wrist strain injury.

I find the fifth criterion in the OPM Document No. 11-01-01 – Adjudicative Process – has been met. I am persuaded by the weight of the medical evidence that supports compatibility exists between the diagnosis of a bilateral wrist repetitive strain injury and the disablement history.

I conclude all of the threshold criteria in the OPM Document No. 11-01-01 – Adjudicative Process – have been established to support the allowance of initial entitlement to the worker’s bilateral wrist repetitive strain injury.

CONCLUSION

I conclude initial entitlement to a bilateral wrist repetitive strain injury is allowed. The employer’s objection is denied.

DATED October 20, 2022

S. Johnson

Appeals Resolution Officer Appeals Services Division

Employer v. Worker, 2022 CanLII 121760

Case Summary

ANALYSIS

Initial Entitlement to Bilateral Wrist Repetitive Strain Injury

Employer Submissions:

Worker Submission:

Findings:

Accident History

Criterion 4: Proof of Accident

Criterion 5: Medical Compatibility

CONCLUSION

ANALYSIS

Initial Entitlement to Bilateral Wrist Repetitive Strain Injury

Employer Submissions:

Worker Submission:

Findings:

Accident History

Criterion 3: Personal Work-Related Injury

Criterion 4: Proof of Accident

Criterion 5: Medical Compatibility

CONCLUSION