APPEALS RESOLUTION OFFICER DECISION
decision number:
20220024
OBJECTING PARTY:
worker
REPRESENTED by:
Worker representative
RESPONDENT:
employer
REPRESENTED by:
employer representative
HEARING:
VIDEOCONFERENCE – february 11, 2022
HEARD by: Dated:
n. francis, appeals resolution officer MARCH 17, 2022
ISSUES
The worker, through their representative, is objecting to:
The Case Manager (CM) decision dated May 9, 2018 denying entitlement to a partial tear of the right shoulder; and
The CM decision dated December 11, 2018 granting 25% Secondary Injury Enhancement Fund (SIEF) relief to the employer.
PRELIMINARY ISSUE:
The employer representative voiced their concerns related to a previous claim the worker has for the same area of injury. While they do not have any information relating to this previous claim, they have concerns regarding the accident history and the significance of reporting another claim with a different employer for the same area of injury.
I indicated to the employer representative that to prevent bias, I have not reviewed any prior claims the worker has had and this hearing will focus only on the issues identified for the current claim, as that is what is within my jurisdiction.
BACKGROUND
On October 8, 2017, this retirement home dietary aide experienced an onset of right arm and shoulder pain after performing her regular duties. The worker‘s regular job duties included carrying trays of food weighing approximately 4-6lbs each to 170 residents. This was done twice a day and included clearing tables afterwards. The worker’s schedule was four hours a day for seven days, followed by seven days off. The worker was also concurrently employed at another similar employer for 30 hours a week, followed by a week off.
In July 2017, there was a change in the worker’s work duties which caused increased lifting and the worker was no longer able to use the carts for serving and clearing tables, which had to be done manually. The worker attributes this change to the onset of injury.
On May 9, 2018, the claim was allowed for right arm biceps tendonitis, however entitlement to the right shoulder partial tear was denied, based on a lack of compatibility with the accident history. The worker was deemed to have reached a full functional recovery of the right biceps tendonitis by July 12, 2018 with no permanent impairment.
The worker underwent right rotator cuff surgery in 2019; however, there are no further details provided regarding the worker’s lost time from work on file.
The employer’s request for Second Injury and Enhancement Fund (SIEF) relief was granted on December 11, 2018 to which the worker objected on January 14, 2019. The worker representative noted on the intent to object form that the worker had no evidence of any pre-existing injury or tear prior to the October 8, 2017 injury.
AUTHORITY
Operational Policy Manual
Published
11-01-01 Adjudicative Process
November 3, 2008
14-05-03 Second Injury and Enhancement Fund (SIEF)
February 20, 2006
ANALYSIS
I have carefully considered all of the available information, testimony, submission, legislation and relevant operational policies in reaching this decision. In doing so, I find the worker has entitlement to a right shoulder partial tear. I find there is no entitlement to SIEF in the claim.
Worker’s Position
The worker representative submits that the right shoulder partial tear was caused by the work duties and entitlement should be granted with further benefits flowing from that injury. The representative argues that it is illogical that the claim would be allowed for the right biceps tendonitis, but not extended to the right shoulder partial tear.
The representative indicates that he would normally not get involved with issues related to SIEF cost relief to the employer, however since this representative started their representation in the file while the issues had already been submitted to Appeals, they felt it necessary to address. The SIEF decision indicates it was granted on the basis that the non-compensable right shoulder partial tear delayed the recovery. The representative submits that SIEF should not be granted as there was no pre-existing condition prior to being hurt at work.
The worker representative provided in their opening statement details surrounding the other WSIB claim filed from the concurrent employer, which was denied. Noting the employer’s concerns raised in the preliminary discussions, the worker representative indicated that since he was the only one who had access to both files, he felt it was important to share that it is evident that this current claim is the correct employer for which the work accident is registered. The representative opined that the work duties at the current employer are far heavier and more repetitive than that of the other employer.
Employer’s Position
The employer representative requests the decisions previously granted be upheld, noting the questionable other accident with another employer for which the details of they are not privy to. The employer also questions the mechanics described regarding the holding of the tray and the compatibility to the diagnosed shoulder tear. The worker’s lack of recollection of the details surrounding the other employer and why there was an accident reported there raises issues of credibility of the worker’s testimony.
The employer representative argues there is evidence of pre-existing degenerative changes that not only make the worker more susceptible to injury but also prolonged the recovery and are requesting SIEF be upheld.
Relevant Policy
Policy 14-05-03 Second Injury and Enhancement Fund (SIEF) states in part:
If a prior disability caused or contributed to the compensable accident, or if the period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF.
Both physical and psychological disabilities are included.
In determining cost relief, consideration is given to the medical significance of the pre-existing condition and the severity of the accident.
Policy 11-01-01, Adjudicative Process is the policy that decision–makers use to determine whether the criteria has been met for the allowance of entitlement in a claim. It is not sufficient that some criteria are met, all must be met in order to establish initial entitlement. The criteria as required by this policy are:
An employer
A worker
Personal work-related injury
Proof of accident, and
Compatibility of diagnosis to accident or disablement history
Compatibility means there is a causal relationship between the diagnosed injury and the accident described.
Details of Case
Worker’s Testimony
The worker testified that she has worked for the employer for the past 2 years as a dietary assistant. The worker clarified she has never had any previous arm or shoulder problems. In 2012 she started working at another nursing home as a dietary aide and in 2016 started working at the accident employer, as a waitress style dietary aide. The worker states that the WSIB file is incorrect as it states she works at the concurrent employer 30 hours per week. She works at the other employer a total of 30 hours every 2 weeks.
Upon questioning from her representative, the worker went into significant detail about the duties performed at both employers. At the concurrent employer she performs two 8-hour shifts from 6:15 am to 2:15 pm every week. Her responsibilities include setting tables for breakfast and lunch, two seatings for 62 residents. She serves milk to residents on a cart and there are four personal support workers (PSW) and a nurse in the dining room. The PSWs serve the food and clear the tables. She is responsible to load dirty dishes and unload clean dishes at waist height and wipe down tables for the second sitting. The process is repeated for the lunch serving.
At the accident employer she works 28 hours every two weeks and does three, 4-hour shifts working
4 pm to 8 pm serving dinner. In the summer of 2017 there was a change in the job and instead of five servers, the employer downsized to four servers for the same amount of residents, in the same amount of time and there was no more use of carts to serve the food or beverages.
In 2016 the worker’s duties included kitchen and dining room duties for two sittings at 5 pm and 6 pm. Each sitting was for 80 residents. She was responsible for prepping the 20-25lb bag of prunes from the fridge, lifting it from the bottom shelf of the fridge to above waist height to the counter at the start of every shift where she had to place 15 bowls of prunes on each tray. She fills 40-50 trays of real glassware, not plastic, with juice and milk and rolled this cart out to the dining room tables. The worker then serves each resident picking up the trays from cart to table. She takes orders for five tables, clears the tables and serves the soup, entree, coffee and dessert. The worker then clears the dishes and loads the industrial dishwasher which has racks that are above shoulder height. When asked how much each tray of soup, juice and milk weigh, she indicated 20-30lbs as they are not plastic dishes, they are glass and ceramic. Each cup or plate weighed approximately 2lbs each. The worker repeats these duties for the second sitting, another 80 residents. After the second sitting, the worker cleans off the table linens and pulls the 50lb laundry cart over a carpeted dining room floor to the first floor laundry room.
In the summer of 2017 the worker continued to be responsible for all the same duties previously described in 2016, with the addition of some challenges. The worker states the employer downsized to four servers, so the number of residents increased per server. The serving style also changed to fine dining, which meant they could no longer use carts and wheel them out into the dining room to serve the clients from tray to cart. They now how to lift the 20-30lb trays from the kitchen counters to above shoulder height and walk out to the dining room to serve the entrees from shoulder height. Fine dining meant the residents were not supposed to be able to see the surface or top of the trays and they were to always hold the trays up with their wrists flexed above shoulder. The worker complained to the dining room supervisor when she began feeling discomfort in her shoulder, however the supervisor reminded her that for fine dining the trays could only be held at an above shoulder height, with one hand.
On October 8, 2017 the worker felt severe pain in the right shoulder and could not finish her shift and went to the emergency department. The worker experienced pain and numbness from shoulder to elbow. The worker indicates they never had any previous complaints of pain in the right shoulder, had no previous injuries to the right shoulder and no accidents outside of work.
When the worker was questioned by the employer representative about the forms completed for the other employer, the worker could not recall many details. The worker could confirm she is right hand dominant and holds the tray with the right hand. The worker also confirmed the floor at the other employer is wood, not carpeted.
The worker testified that she is not currently working and had surgery on the right shoulder. The surgeon told her that the heavy tray is what caused the shoulder tear. The worker indicates that this injury has affected her life causing an inability to work.
Post Hearing Submissions- Employer
Due to time constraints, the employer representative requested to submit their closing arguments in writing. The submission dated February 15, 2022 indicates they continue to have concerns regarding another claim the worker has for the same date of accident and area of injury with a concurrent employer by the name of XXXXXXX.
The employer representative appreciates that the worker representative shed light on the decision made in that claim noting they were the only ones that had access to that claim. They also acknowledged that this ARO did not review any information related to any previous claims to prevent bias. The employer representative understands that the claim was denied however continues to have concerns regarding the accident history and the significance of reporting of another claim with a different employer for the same area of injury. The representative attempted to ask details from the worker upon worker testimony however did not obtain much information noting the worker could not remember any details related to the submission of a Worker’s Report of Injury (Form 6) under the other claim at XXXXXXX.
The employer representative questions the credibility of the worker’s testimony noting that the worker demonstrated details regarding the manner in which they held the food tray with the right hand and also demonstrated serving with the right hand, which the representative questions, noting the worker indicates they could not place the tray down on a stand or table. They opine the actions demonstrated would not cause a tear noting the arm was close to the body.
The submission raises questions related to initial entitlement and although the representative acknowledges this issue is not within this ARO’s jurisdiction, however felt it was relevant to question. They opine the evidence is not equally weighted and the right shoulder tear is not compatible and should not be covered under the claim. They opine the claim file clearly documents the worker had an underlying condition and request the SIEF entitlement be upheld.
Post Hearing Submissions – Worker
The worker submits, through their representative, that the oral testimony of the worker should be relied upon as well as the submissions provider for the hearing itself. The representative indicates their oral submissions made at the hearing have addressed the issues in the Employer’s post-hearing submission.
Relevant information on file
Chart notes obtained from the family doctor from July 2017 to Feb 2019 do not demonstrate any mention of shoulder problems or complaints of pain prior to October 2017.
On November 7, 2017 the worker had a consultation with the orthopaedic specialist due to a one-month history of right shoulder and arm pain. Examination did not show signs of swelling however on palpation the worker was tender to touch over the lateral deltoid muscle bulk. The doctor opined that likely there was rotator cuff tendinosis or calcinosis, an ultrasound was ordered and a prescription for Celebrex given.
A January 15, 2018 right shoulder ultrasound report demonstrated rotator cuff tendinosis with intermediate to high-grade partial thickness humeral surface tear of the mid to anterior fibres of the supraspinatus tendon. There was diffuse thinning of the long head of the biceps tendon which is otherwise intact.
A hand and upper limb clinic note dated January 18, 2018 indicates the worker continues with right arm pain having had a worsening of pain over the last week. The worker has swelling in the right arm and examination is compatible with right rotator cuff (RC) syndrome. There was a positive impingement sign and pain with resisted rotator cuff testing. An ultrasound of the shoulder demonstrated a supraspinatus tendinopathy with near full thickness defect. A prescription for Celebrex was given and physiotherapy should be continued. Follow up recommended for three months.
An April 19, 2018 follow up note from the orthopaedic surgeon indicates the worker was seen in the clinic three months ago for a right RC syndrome. At that time it was felt that she had RC on top of some biceps tendinitis and positive impingement signs. The worker had swelling of the upper arm. An ultrasound ruled out a deep vein thrombosis. Although participating in physiotherapy there has been no improvement in the last three months, the source seems to be in relation to work. On examination the worker appeared to be in distress and had a high grade partial thickness tear toward the humeral side. Restrictions at work were recommended for the next three months. The worker should continue with physiotherapy and a subacromial injection was recommended however the worker wanted to think about this. Follow up is required in three months or sooner.
A memo of a call between the worker and the Eligibility Adjudicator dated May 4, 2018 indicates the worker was confused as to why there were two claims set up. The worker indicates that she inured her right shoulder at the employer. The worker stated there was a job change at the employer in July 2017 and this is what she attributes to the injury.
On July 12, 2018 the worker underwent a cortisone injection which the worker reported pain relief immediately following. The note indicates the worker has been able to obtain modified work at one of her two jobs. The worker continues doing full duties at that job, however it was recommended that modified duties should continue until re-evaluation in two months.
The May 8, 2019 orthopaedic specialist report confirms the worker has a rotator cuff tear from employment which involves repetitive tasks and the pathology identified is associated with repetitive work. The worker is schedule for reconstructive surgery to repair the tear.
On May 16, 2019, the Case Manager reconsidered the SIEF cost relief. The SIEF quantum was increased to 50% based on a moderate accident history and minor pre-existing condition.
Assessment of Evidence
- Is there entitlement to a partial tear of the right shoulder?
Initial entitlement has been established in the claim, however the issue of compatibility of the right shoulder partial tear remains the issue. The worker has been consistent that the injury to the right shoulder was always the source of pain and complaints for which medical attention was sought. The employer does not argue that entitlement should be denied, however they agree with the Eligibility Adjudicator that the diagnosis of the right shoulder supraspinatus partial tear is not compatible.
To establish compatibility in the case of a disablement history, the medical diagnosis must be shown to have resulted from or been caused by, the worker’s job duties. I find that the duties described by the worker, specifically the change in job duties from using a cart to transport the trays to the dining room, to the carrying of the 20-30lb trays at shoulder height or above is compatible with the diagnosis of a right shoulder partial tear.
The worker details in their testimony that the trays of food, juice/milk, soup or dessert were plated on glassware dishes, not plastic. Each tray could not be carried lower than shoulder height to maintain the requirement for fine dining. The mechanics of holding a tray above shoulder height with one hand in addition to the extra residents the worker was responsible to serve, noting the serving staff was decreased by one server, provides evidence that the change in the worker’s job duties resulted in the right shoulder partial tear. The repetitive nature of the significant change in the worker’s duties is the contributing factor to the worker’s onset of pain.
The worker was asymptomatic for any right shoulder or right bicep condition prior to October 2017. The worker has been performing the job of a dietary aide at the employer for the past two years without any difficulties. The change in protocols to fine dining and the increase in number of residents she was responsible to serve, would be considered a significant change in job duties that I find is compatible with the diagnosis of a partial shoulder tear.
A rotator cuff partial tear is a diagnosis usually brought on by overuse and the mechanics of the worker’s use of her right shoulder in holding the trays up above shoulder height on a repetitive basis and increase in the number of residents served, would cause an overload of the rotator cuff. I am satisfied that disablement history is compatible the medical evidence provided for the diagnosis of a right shoulder partial tear.
While I understand the employer representative’s argument that they are not convinced the injury resulted from the employer, I find the worker’s testimony clearly demonstrates the job duties at the employer are the duties responsible for the work-related injury. The duties at the employer are heavier in nature than those at XXXXXXX. At the employer, the worker is responsible for the lifting a 25lb bag of prunes, the overhead lifting of the 20-30lb trays multiple times throughout a shift and for serving an increased number of residents, the loading of the dirty dishes in the overhead dishwasher racks and the pushing and pulling of the laundry cart over the carpeted surface.
At XXXXXXX, the duties are lighter with the worker being responsible for setting the tables but not the serving. The serving of milk to residents is also done on a cart at XXXXXXX and the loading and unloading of the dishes are done at waist height. The worker wipes down the tables for the second sitting and there is no changing of linens involved or the pushing/pulling of a cart over a carpeted surface.
The worker’s testimony provides clear evidence that the accident is registered under the correct employer noting the heavier nature of the job and the change in repetitive work duties which I find to be the mechanism of injury and caused the right bicep tendonitis and right shoulder partial tear.
- Is there entitlement to SIEF cost relief?
In order to qualify for SIEF cost relief there must be a pre-existing condition present in keeping with policy 14-05-03. The policy defines a pre-existing condition as an underlying or asymptomatic condition which only becomes manifest post-accident. A pre-accident disability is defined as a condition which has produced periods of disability in the past requiring treatment and disrupting employment.
The medical evidence on file does not support the worker had a pre-existing disability or condition. A review of the worker’s medical chart notes from July 2017 to the onset of pain shows no history of any right shoulder complaints, degenerative changes or underlying asymptomatic condition. There is no history of any pre-existing condition that produced periods of disability in the past that required treatment or disrupted employment.
Policy 14-05-03 clearly indicates that in order to qualify for SIEF cost relief there must be a pre-existing condition present. I am not persuaded by the medical evidence that the worker had a pre-existing condition that caused or contributed to the worker’s bicep or shoulder injury. There is also no evidence of any degenerative changes in the right arm or shoulder joint that prolonged the recovery of the work injury.
I find the evidence clearly demonstrates the significant change of heavy and repetitive nature of the worker’s job duties at the employer caused the right shoulder partial tear in addition to the right biceps tendonitis. I am satisfied compatibility has been established in keeping with policy 11-01-01. I find no evidence of any pre-existing condition for the criteria as required under policy 14-05-03 to allow entitlement to SIEF cost relief.
CONCLUSION
I conclude:
There is entitlement to a partial tear of the right shoulder. The nature and duration of any benefits flowing from this decision are remitted to the operating area for adjudication.
SIEF cost relief to the employer is rescinded.
The worker’s objection allowed.
DATED March 17, 2022
N. Francis
Appeals Resolution Officer
Appeals Services Division