WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 849/07

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 849/07 BEFORE: J. B. Lang : Vice-Chair B. M. Young : Member Representative of Employers J. A. Crocker : Member Representative of Workers HEARING: April 5, 2007 at Sault Ste. Marie Oral DATE OF DECISION: April 23, 2007 NEUTRAL CITATION: 2007 ONWSIAT 1111 DECISION(S) UNDER APPEAL: WSIB ARO decision dated: April 6, 2005 APPEARANCES: For the worker: For the employer: Interpreter: Ms. Hannalie Ethier, Office of the Worker Adviser Ms. Cathy Nichols, Office of the Employer Adviser N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 849/07 THE APPEAL PROCEEDINGS [1] The worker appeals from the decision of Mr. B.J. Romano, an Appeals Resolution Officer, dated April 6, In that decision, the ARO found that the there was not sufficient evidence to support the worker s claim that her bilateral repetitive strain injury was caused by her work at the accident employer. INTRODUCTION [2] The worker began her employment with the accident employer in October The employer is a franchisee of a multinational corporation that operates a chain of donut shops. The worker started out as a counter person and in August 2000 was promoted to the position of supervisor. In this position she was responsible for maintaining shift schedules, checking temperatures of the product and providing some supervision of staff. Her duties also included filling orders at the drive in window. An assistant store manager, to whom she reported, was also on site during her shifts. The worker s regular shift was from 6:30 a.m. to 2:30 p.m., Monday to Friday. [3] On March 21, 2001 the worker filed a claim with the Board for an injury to her right thumb. The injury was sustained from operating the headset used to communicate with customers at the drive-through window. The headset was operated from a control box that was strapped to her chest. The worker pressed a button with her right thumb while speaking to a customer; when she released the button, the customer was able to speak to her. [4] The Board accepted this claim for health care benefits which consisted primarily of physiotherapy treatments. No lost time was reported and the worker accommodated herself by using different fingers when pressing the button. [5] On October 2, 2002, the worker filed a second claim with the Board citing bilateral injury to her hands, wrists, elbows and shoulders. She claimed that this injury was sustained from pouring coffee and operating the headset. She felt that this injury was a recurrence of the injury reported in March The working diagnosis at that time was bilateral repetitive strain injury and bilateral carpal tunnel syndrome. [6] The Board initially denied the worker s claim on December 20, The Claims Adjudicator found that there was insufficient evidence to conclude that the worker s job duties caused the reported injuries. In particular, the Claims Adjudicator relied on her finding that the worker was able to rotate job duties as required and that the job itself allowed for a variation in the movements of the hands, wrists and arms/shoulders. [7] At the request of the worker, the Board conducted an on site ergonomic assessment of the worker s job on April 3, The ergonomist concluded that there was a low level of compatibility between the job duties performed by the worker and the injuries claimed. On the basis of this report, the Claims Adjudicator confirmed her previous decision to deny the worker s claim.

3 Page: 2 Decision No. 849/07 [8] The Appeals Resolution Officer conducted a hearing on March 25, He heard testimony from the worker and a witness for the employer, and received submissions from the worker s representative and the employer s representative. In addition to the material before the Claims Adjudicator, the ARO had before him a report from Dr. Brian A. Shamess, a specialist in sports medicine and a report from the Occupational Health Clinics for Ontario Workers Inc (OHCOW) which supported the worker s claim for entitlement. At the end of the day, the ARO was not persuaded by the new evidence provided by the worker and found that the worker s bilateral repetitive strain injuries were not causally connected to her work with the accident employer. THE ISSUE [9] The issue in this appeal is whether the worker is entitled to benefits for the repetitive strain injuries to her wrists, arms and shoulders. More specifically, the issue turns on whether there is sufficient evidence to conclude that the repetitive work she performed at the accident employer was a significant contributing factor to the onset of these disabilities. LAW AND POLICY [10] The accident date for this appeal is October 2001; consequently the Workplace Safety and Insurance Act, 1997 applies. Pursuant to s.126 of that Act, the Board has identified Policy Package #1 (Revision #7) Initial Entitlement and Policy Package #300 (Revision #7) Decision Making/Benefit of Doubt/Merits and Justice as applying to the subject matter of this appeal. REASONS [11] For the reasons that follow, the Panel has decided to deny the worker s appeal. [12] After considering the testimony of the worker and other information in the Case Record which described the worker s job duties, the Panel accepts that there was some repetitive work associated with the worker s job. This repetitive work was most associated with filling orders at the drive-through window where she would be engaged in operating the control panel of her headset and filling cups of coffee. The Panel accepts the worker s testimony that this work was most intense during the morning rush hour from 6:30 to 9:00 am. However, the Panel also accepts that given her supervisory role and the policy of the employer to have workers rotate through different jobs, the worker was in a position to vary her job functions, if required. The Panel also notes that the worker testified that the job function that caused her the most discomfort was reaching for a coffee mug at just above shoulder level and filling cups of coffee. The issue for the Panel, therefore, is not whether there was some repetition in the worker s job duties but rather, whether these job duties were a significant contributing factor in the development of the worker s repetitive strain injuries to her arms and wrists. [13] Mr. Stuart Fleck, an ergonomist with the Board, conducted an on-site analysis of the worker s job duties; the worker was present during the ergonomist s inspection. In his report, the ergonomist accepted that the worker performs the same duties as regular service clerk employees during peak hours and then takes the more managerial role during off peak hours and rushes. Mr. Fleck paid close attention to the movements associated with pouring coffee. He

4 Page: 3 Decision No. 849/07 reported that pouring coffee involves lifting the coffee pot from the upper level 147 cm (58 ) from the ground with the right hand/arm with a power grip and pouring into the cup. Pouring will result in slight wrist deviation, elbow flexion and arm abduction. The Panel took note of the fact that the weight of the coffee pot diminishes as the pot is emptied. [14] In his report, Mr. Fleck also reviewed the ergonomic risk factors associated with the development of carpal tunnel syndrome. These factors included highly repetitive work, forceful work, work performed in extreme postures and work involving hand/wrist vibration. Mr. Fleck accepted that [t]here are without doubt repeated tasks within [the worker s] position. However, he asserted that repeated tasks are not necessarily repetitive. He relied on a study by Stephan Konz, Work Design: Industrial Ergonomics 4 th Ed. (1995) for authority that [a] job is considered repetitive if the basic cycle time is less than 30 sec. (30 sec rule). The 30s rule deals primarily with hand/wrist motions. [15] Mr. Fleck accepted as a working hypothesis that 400 customers would be served at the drive-through window in a 3½ hour period each morning. In addition to coffee, he accepted an estimate that bagels and 125 muffins were served in that period by a six person team. He concluded that the repetitive nature of the job will most likely be at or just beyond the 30-second rule definition. [16] Mr. Fleck also noted that duration and prolonged exposure to the risk factors are the critical element in determining their effect or relationship to the injury. In this regard, he found that the worker had the ability to rotate through different jobs which lessened the risks associated with the repetitive nature of the job. Mr. Fleck also observed that the worker s disabilities were bilateral but that the repetitive work which she performed was predominantly right-hand dominant. [17] In summation, Mr. Fleck cited four reasons for reaching the conclusion that there was a low level of compatibility between the job duties, physical demands, workstation layouts and known mechanisms of injury and the reported injuries of the worker: 1. Limited prolonged sustained repetitive hand/wrist actions by definition 2. Predominately right hand dominant work bilateral injury 3. Limited hand/wrist forceful work 4. Limited sustained or prolonged combination of risk factors [18] The worker s representative commissioned the Occupational Health Clinics for Ontario Workers Inc (OHCOW) to review the worker s file and to perform a peer review of the Board s ergonomist report. Mr. Trevor Schell, an ergonomist with OHCOW submitted a report dated January 18, Apparently, the worker completed a questionnaire for Mr. Schell, but a copy of this questionnaire was not included in the Case Record. In addition, Mr. Schell did not conduct an on-site study of the workplace. Mr. Schell also appears to rely on anecdotal evidence he has obtained from clients who were employees of other franchisees of the donut shop chain in his assessment of the volume of work the worker performed. [19] In his report, Mr. Schell focuses on awkward postures as one of the leading risk factors for musculoskeletal disorders and concludes that in reaching for coffee, the worker placed her

5 Page: 4 Decision No. 849/07 arm in an awkward posture. With respect to repetitive motions, Mr. Schell states that the task showing the largest repetition in [the worker s] job is pouring coffee and making sandwiches/bagels. His calculations with respect to the amount of coffee that was made are based on what [p]revious clients have estimated. [20] Mr. Schell s major criticism of the report of the Board s ergonomist is that the on-site visit was not done at peak hours. However, he also stated that [o]verall it is a good report but it is difficult to comment since it was conducted for a different diagnosis than what I have been asked to comment on. [21] The Panel finds that it is not able to place much weight on the opinions expressed in the report of Mr. Schell. His calculations of the repetitive nature of the work performed are based on anecdotal evidence of what other clients from the same chain have reported. Anecdotal evidence of this nature cannot be the basis for a finding of initial entitlement. He also cites two job functions pouring coffee and preparing sandwiches/bagels as accounting for the most repetition in the worker s job. But he makes no comment about what effect rotating between these two jobs would have on the risk of developing repetitive strain injury. The Panel finds that the absence of such an analysis is a weakness in the report. As noted above, the OHCOW ergonomist s report was compiled without an on-site visit and to our knowledge without any input from the employer, and these factors also weaken the objectivity of the report. [22] On the other hand, the Panel finds that the report of the Board s ergonomist was conducted in a professional manner and its conclusions are supported by objective observations and recognized authorities. The fact that the on-site survey was done at off peak hours did not, in the opinion of the Panel, detract from the ergonomist s ability to assess the worker s job functions. The Board s ergonomist factored in the peak customer demand periods in his final assessment. Not only did the OHCOW ergonomist state that the Board s report was a good report, the worker s treating physician, Dr. Shamess described it as a very good ergonomist s report. We find that, on balance, the report of the Board s ergonomist is to be preferred over that of the OHCOW ergonomist and consequently, we have relied on its conclusion that there is a low level of compatibility between the job duties performed by the worker and the onset of her reported injuries. [23] In his letter of January 23, 2004, Dr. Shamess also commented on the Board s ergonomist report. He pointed out that the Board s ergonomist did not address the issue of muscle imbalance and predisposing connective tissue dysfunction. In Dr. Shamess view, the worker is predisposed to the development of musculoskeletal soft tissue problems and the repetitive actions in lifting at work, at a minimum, accelerated the presentation of this pain syndrome. [24] The Panel notes that Dr. Shames has had considerable difficulty in arriving at a diagnosis of the worker s disability. His original diagnosis in December 2002 was postural and use syndrome repetitive strain injury rotator cuff syndrome supraspinatus tendinitis. His subsequent diagnosis of carpal tunnel syndrome was not confirmed by neurological testing. However, in his report to the worker s representative on January 23, 2004 he stated that CTS is often seen along with other wrist pain syndromes and thus I do believe this was an accurate diagnosis. After consultation with Dr. Raymond Jacques of OHCOW, Dr. Shamess revised his

6 Page: 5 Decision No. 849/07 opinion and stated that it is most probable that the worker has suffered a repetitive strain injury to her thumbs and wrists as well as probable connective tissue dysplasia. [25] The Panel finds that the ambivalence in this diagnosis does not assist the worker s claim for entitlement to benefits on the grounds that she is predisposed to repetitive strain injuries. But even if such a predisposition is accepted, the test still remains whether the repetitive nature of the work was a significant contributing factor in the onset of the disability. The Panel finds that on the basis of the analysis of the worker s job functions contained in the Board s ergonomist s report, there is not sufficient evidence to reach that conclusion. [26] For all of the above reasons, the Panel finds that there is not sufficient evidence to conclude that the job duties the worker performed at the accident employer were a significant contributing factor in the development of the worker s injuries to her wrists, arms and shoulders. Consequently, the worker s appeal is denied.

7 Page: 6 Decision No. 849/07 DISPOSITION [27] The appeal is denied. DATED: April 23, 2007 SIGNED: J. B. Lang, B. M. Young, J. A. Crocker