WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2408/10

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2408/10 BEFORE: R. Nairn: Vice-Chair HEARING: November 30, 2010 at Hamilton Oral DATE OF DECISION: March 22, 2011 NEUTRAL CITATION: 2011 ONWSIAT 688 DECISIONS UNDER APPEAL: WSIB Appeals Resolution Officer ( ARO ) decisions dated February 11, 2008 and April 3, 2009 APPEARANCES: For the worker: Ms. B. Snider, SEIU, Local 1 For the employer: Interpreter: Did not participate None 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. 2408/10 REASONS (i) Introduction [1] On January 4, 1999, while working as an administrative associate in the employer s hospital, the worker reported experiencing an onset of pain in her left wrist which she claimed was related to the repetitive nature of keyboarding duties. The worker, born in 1964, is righthanded. [2] In the Physician's First Report of January 6, 1999, Dr. N. Heath (general practitioner) provided a diagnosis of tendonitis L wrist and described the patient s history of injury as working on keyboard pain L wrist. The symptoms and physical findings were described as overuse syndrome L wrist, swollen L wrist. [3] The worker requested that the WSIB (the Board ) recognize her left wrist condition as compensable. In Memo #3 dated March 22, 1999, the Claims Adjudicator noted the following after a conversation with the worker: Accident history/onset of pain Wkr reports developing an onset of left wrist pain on 04 Jan 99 which she attributes to an increase/change in her job which occurred on 04 Jan 99. Wkr confirmed she did not have prior problems or pain in the left hand/wrist prior to 04 Jan 99. Wkr is right hand dominant. Wkr works in the emergency department at accident employer, she is responsible for registering all patients who come into the emergency department. She usually works with a co-worker, who is responsible for registering patients who are being admitted to hospital. On 04 Jan 99, she worked alone all day and was responsible for registering both patients being seen through emerg and patients being admitted to hospital. Relates the onset of pain to inputting computer information. She explained that it was a busy day in emerg on 04 Jan99, with 70 patients being seen throughout the day. She is not sure of the number of patients admitted to hospital on 04 Jan 99. Duties: input personal information, medical information, into a computer. Throughout the course of the day her hand, finger, wrist became swollen. She worked on 05 Jan 99. On 06 Jan 99 she saw Dr. N. Heath in emergency. She reported the incident to employee health on 06 Jan 99. Lost time details: [last day worked] 17 Feb 99 Rtw still off ( ) Additional information

3 Page: 2 Decision No. 2408/10 ( ) She is not having RT wrist problems and is not claiming entitlement to RT wrist. Wkr states her office is not ergonomically set up I explained that I would need to confirm the increase/change in job duties with her manager. Also, file will probably need to be reviewed by UMA. [4] On April 1, 1999, the Adjudicator spoke with a representative of the employer and noted the following in Memo #6: Received a message from B.E., confirmed that on 04 Jan 99 the volume in emerg was extremely high with 70 patients going through emerg. On average there are patients seen through emerg. B.E. also confirmed that the worker was working alone on 04 Jan 99, due to the snow storm, the hospital was short staffed. [5] In the course of considering the worker s request for benefits, the Claims Adjudicator asked for a medical opinion and in Memo #8 dated April 20, 1999, Dr. Boga of the Board replied: This 35 year old registration clerk is relating her left arm pain to her work. She has been working with the employer since 1987 without any problems. Her work involves essentially keyboarding. She is diagnosed tendonitis of left wrist per F8, which she attributes to registering 70 patients rather than patients on 4 Jan 99. According to the National Institute of Occupational Safety and Health, the risk factors [for] tendonitis are a combination of repetition, force and vibration. The job outlined does not seem to fulfill the risk factor criteria to have caused tendonitis of the wrist or elbow. It does not appear that registering ten extra patients on 4 Jan 99 would cause tendonitis of the wrist any more than the regular number of patients. Medically the diagnosis does not seem compatible with work. [6] In light of the opinion provided by Dr. Boga, the Claims Adjudicator, on April 21, 1999, advised the parties that initial entitlement to benefits for the worker s left wrist was being denied. [7] Information on file suggests that in 2007, the worker requested that the Board reconsider its decision to deny initial entitlement. The Claims Adjudicator requested another medical opinion and in Memo #16 dated April 11, 2007, Dr. Grbac of the Board advised: Since the last medical review on file, there has not been any new medical information imaged. The reference by the IW s rep in regards to Dr. Tountas identifying that the work station was not ideal was not found. In the entry form from Feb 99 Dr. Tountas states she [the IW] explained to me her working station and it is apparent that the ergonomics are not ideal. This implies that Dr. Tountas arrived at this determination based on what was reported by the IW as opposed to a formal assessment on his part. Of interest while an initial report identified a left wrist tendonitis, Dr. Tountas in an entry from Jan 99 also noted the presence of left lateral epicondylar (elbow) issues and findings. Subsequent entries alluded to left shoulder pain and in Mar 99 even the right wrist was a concern. It would appear that the IW is claiming only the left wrist as an area of injury. Medical opinion and general discussion based on a review of the available medical information on file at the time of this review:

4 Page: 3 Decision No. 2408/10 In terms of hand/wrist tendonitis there is evidence of an association between individual risk factors (repetition, force and posture) based on currently available epidemiologic data. There is strong evidence that job tasks that require a combination of risk factors (high repetitious forceful hand/wrist exertion) increase the risk for the development of hand/wrist tendonitis. There does not appear to be any new information on file which has identified risk factors within the job duties which would support the issue of compatibility between a left wrist tendonitis and the accident history. [8] In light of the opinion provided by Dr. Grbac, the Claims Adjudicator confirmed the earlier decision to deny initial entitlement for the worker s left wrist condition. The worker objected to this conclusion and the matter was eventually referred to an Appeals Resolution Officer ( ARO ). In a decision dated February 11, 2008, the ARO denied the worker s appeal and concluded: I have thoroughly reviewed the circumstances of this claim as they occurred 9 years ago. Although this claim has elements of a gradual onset disablement, there are insufficient compatibility factors to allow entitlement. First of all, the medical reporting and documentation are incomplete, variable, and inconclusive. At one point the symptoms are associated with the right wrist. At other times the area of injury is described as the left wrist, left hand, left elbow, and the left shoulder. However, the only diagnosis provided and claimed is left wrist tendonitis. The work duties are not classified as repetitive, strenuous, or forceful. I am unaware of any ergonomic evaluations of the worksite, incorrect posturing, inappropriate equipment, or workplace hazards. There is no documented information in this regard. The volume of work performed was not excessive by industrial standards. I understand that a few extra patients may have been admitted on January 4, 1999 but that number was not sufficiently vast to account for the onset of an impairment. The worker was not keyboarding on a continuous basis. There were ample periods of other activities between patients to allow for positional changes. There was no explanation as to why only the left wrist was affected since the activity was presumably performed with two hands. I am also unaware how the work station, or the job duties differed when the worker resumed her regular work a short period of time later. There are simply too many unknown factors to establish a definitive link to the work duties. [9] On approximately November 1, 2006, while still working with the accident employer, the worker experienced another onset of pain in her left and right arms. According to the decision on appeal, the worker laid off work on November 6, 2006, and collected sick benefits for a period of six weeks. When those benefits ceased, she reported the work injury to her employer. [10] In her Report of Injury/Disease dated January 10, 2007, the worker noted in part: If you had a gradual onset type of injury, describe your injury, the work that you do and what you believe caused your injury/condition. Repetitive strain became chronic over the years. Pain had gotten worse after typing on a broken keyboard rest. I register patients that come into the x-ray department keyboarding 7 ½ hours a day. When did you first start to have problems with this injury/condition? Chronic problem since 1999, got worse since working on a broken keyboard tray. If you did not report this to your employer right away, please tell us the reason why. Not right away. Chronic problem over the years. Pain has gotten worse and just thought it would ease [illegible].

5 Page: 4 Decision No. 2408/10 [11] In the Health Professional s Report of December 22, 2006, the worker s family physician, Dr. H. Earle, indicated that the worker had injured her left shoulder, elbow, wrist and hand as well as her right elbow, wrist and hand. With respect to the cause of the injury he noted chronic pain developed while typing repetitive strain type injury. [12] In Memo #1 dated January 8, 2007, the Claims Adjudicator noted the following after a conversation with the worker: Worker reports a chronic situation since 1999 at workplace and worker s symptoms increased 01 Nov 2006 in left shoulder, bilateral elbows & wrists and arms and worker has received treatment over the years. Worker has seen Dr. Tountas and family doctor Earle and Dr. M. Kleinman on 22 Dec 06. Physio has been prescribed and medication prescribed. Tests were done at [the employer] starting in 1999 and Worker has been paid to 22 Dec 06 by accident employer through her sick bank. [13] In Memo #2 dated January 8, 2007, the Claims Adjudicator indicated that initial entitlement was being granted and advised: Entitlement to health care benefits and lost time benefits is allowed for a left shoulder and bilateral elbows, arms and wrists strain/sprain and tendonitis sustained on 06 Nov year old female administrative assistant has been typing on a broken keyboard and workstation not appropriately set up so Claims has determined worker was in an awkward position while performing her work duties and risk factors are present. ( ) [14] When the employer objected to the allowance of initial entitlement, the Claims Adjudicator requested a medical opinion and in Memo #12 dated March 16, 2007, Dr. Grbac of the Board indicated in part: ( ) Note was made of the job description on file. Medical opinion and general discussion based on a review of the available medical information on file at the time of this review: 1) based on the assumption that the IW was working with a broken wrist rest for a period of one week, coupled with a prior ongoing wrist specific problem dating back to 1999, it would appear possible that a temporary aggravation of the pre-existing problem could have resulted in terms of the IW s wrists. That being said, it is improbable that this same exposure to a defective wrist rest would have resulted in pathology involving the IW s elbows, left shoulder and even less so with regards to the IW s neck. With the correction of the defective wrist rest, a return to the IW s pre-injury status would have been expected within a short while. The accident history does not appear to support that the IW was exposed to any risk factors which would have resulted in either a cervical radiculopathy nor a rotator cuff tear as was indicated in the most recent Form 8. The most recent entries allude to impairment and findings for which compatibility does not appear to be supported. If further information is required Claims may wish to obtain the input of our resident ergonomist in terms of delineating the impact of the accident history.

6 Page: 5 Decision No. 2408/10 [15] In Memo #14 of April 3, 2007, Dr. Grbac added: Further to Memo #12, and on the assumption that Claims has accepted the opinion as per that same memo, the medical information on file clearly supports a partial LOI from the onset of the claim. This was noted in the Form 8. Beyond that point in time there did not appear to be any new medical findings which would alter that initial assessment relative to the compensable areas of injury. An FAF report also noted specific restrictions for work as did a subsequent Form 8 from the treating physiotherapist. [16] In testimony provide at this hearing, the worker indicated that she never returned to the accident employer after November In April 2007, a Board Nurse Case Manager spoke with the worker s physiotherapist to obtain an update on the worker s condition and progress. In Memo #16 of April 23, 2007, the Nurse Case Manager noted: - He stated that worker s progress has been very slow and he has not seen much improvement. - Worker is physically difficult to treat. Worker s compliance and attendance was described as poor. - He described that worker demonstrated poor motivation in therapy. - He does not understand why worker has not returned to modified duties. - He endorsed modified duties and graduated hours. - Worker has a follow-up with her G.P. He commented on a possible (ultrasound) or CT. - He will be forwarding a copy of his report to the physician. He is planning to (discharge) worker from therapy. - He feels [multi-disciplinary health care assessment] would be of value. - NCM verbally updated CA that the physiotherapist feels worker is capable of modified work. [17] On approximately April 24, 2007, the Claims Adjudicator advised the worker that her entitlement to loss of earnings ( LOE benefits ) benefits was being terminated on that date as medical supports she was partial from date of accident and employer has offered safe and suitable modified duties from the date of accident. [18] As noted in Memo #17 dated April 24, 2007, the employer was granted 75% Second Injury and Enhancement Fund ( SIEF ) relief from the costs of this claim on the grounds she had a pre-existing condition of moderate severity (as commented upon by Dr. Grbac in Memo #12) and she had been involved in an accident of minor severity.

7 Page: 6 Decision No. 2408/10 [19] In Memo #18 dated April 24, 2007, the Claims Adjudicator noted the following after reviewing the information on file. Background: Worker reported injury in both her shoulders, elbows and wrists, as of November 1, 2006, due to result typing on a broken keyboard and an inappropriately setup workstation. Her accident employer submitted a letter indicating the wrist rest was broken not the keyboard; therefore, employer confirmed worker s workstation was not correctly setup. Objective medical findings on file indicate she has a history of bilateral shoulders, elbows and wrists dating back from Based on the information on file, I have granted entitlement to bilateral wrist strain on an aggravation basis. Compatibility between the accident history provided and the injuries to her shoulders and elbows have not been established. I have determined she has recovered from her workplace bilateral wrist strain and she is able to perform the essential duties of her pre-injury job duties. Entitlement to injuries of her shoulders and elbows will not granted because I have determined working on a broken wrist rest and inappropriate workstation setup would [not] result in injuries to her shoulders and elbows. Wkr has lost time from work from November 6, 2006 to the present; however, I have obtained a medical opinion from our medical consultant and I have determined she was partially impaired and fit for modified duties immediately following your accident with medical restrictions of no lifting more than 10 kilograms, and limited use of both wrists. Accident employer offered suitable modified duties on January 29, 2007, immediately following confirmation she sustained a workplace injury and after carefully reviewing the duties I have determined the modified duties were available as of November 1, 2006 (accident date). You are no longer entitled to health care benefits and LOE benefits for her workplace bilateral wrist strain as of April 24, 2007 because I have determined the worker has recovered from her workplace injuries. Recommendation: 1. Inactivate LOE sequence from November 1, 2006 to present. [20] As noted in Memo #20 of April 26, 2007, while the Board decided to retroactively revoke the worker s entitlement to LOE benefits between November 6, 2006 and April 23, 2007, it was determined that the overpayment would not be recovered. The worker remained entitled to health care benefits only for her bilateral wrist aggravation. [21] On approximately December 12, 2007 a Board Ergonomist visited the worksite to review the appropriateness of the job the worker had been performing in the medical imaging department. In the report which followed that assessment, the Ergonomist concluded: It is the opinion of this ergonomist that risk factors were present in the pre-injury job of Associate Administrative Medical Imaging that could have resulted in or contributed to bilateral wrists and elbow injuries. This is based on repetitive finger movements when typing. The physical demands on the left shoulder were minor and as a result compatibility between the left shoulder injury and the job is not evident. It is the opinion of this ergonomist that use of a broken keyboard tray for approximately one week could have aggravated injuries to the bilateral wrists and elbows, and possibly a left shoulder injury. However, the risk factors associated with using a broken keyboard

8 Page: 7 Decision No. 2408/10 tray for this amount of time were likely not the only contributing cause of [the worker s] bilateral wrists, elbows and left shoulder injuries, but rather performing the Associate Administrative Medical Imaging job over the years. [22] In a decision dated August 13, 2008, the Claims Adjudicator advised: Under this claim, entitlement has been granted to a bilateral wrist strain on an aggravation basis. Objective medical findings on file indicate that [the worker] had a left wrist impairment dating back from The cause of [the worker s] temporary aggravation of her bilateral wrist impairment was a broken computer wrist rest. The wrist rest was broken for one week immediately prior to [the worker s] November 1, 2006 workplace accident and fixed immediately following [the worker s] accident. The objective medical on file indicates that [the worker s] bilateral wrist strain recovered to her pre-injury level in January [The worker s] left shoulder and bilateral elbow symptoms were not caused by the broken wrist rest; therefore, entitlement to these impairments is not covered under this claim file and the objective medical submitted to [the worker s] file subsequent to my April 24, 2007 relates to her non-compensable left shoulder and bilateral elbow impairments. [23] The worker objected to the conclusions of the Claims Adjudicator and the matter was referred to another ARO. In a decision dated April 3, 2009, the ARO denied the worker s appeal and indicated in part: ( ) There is no evidence to support that the worker s neck, shoulders or upper extremity problems arose out of the work performed prior to November 6, 2006 as the worker did not report any work related injury to her employer or to her health care providers until January It is also not apparent as to how the neck and shoulder diagnosis would be compatible with working on a broken arm rest for a week. The limited medical information does support that the worker had a long history of upper extremity and neck problems dating back many years prior to 2006 and therefore the decision to accept entitlement on an aggravation basis would be reasonable. Entitlement exists according to the claims adjudicator for a bilateral wrist strain and the medical reports in the claim do not reference continued bilateral wrist findings. Therefore the conclusion that the bilateral wrist strain has ceased, there is no basis for additional loss of earnings benefits and there is no basis for a NEL assessment is consistent with the medical reporting. The ergonomist assessment has confirmed that the worker was offered modified duties that would respect all of the worker s non-compensable and compensable injuries and therefore there would be no basis to award additional benefits to the worker. (ii) Issues [24] The issues to be determined in this case are: (a) whether the worker has initial entitlement to benefits for a left wrist condition which she claims can be causally related to the nature of her duties on January 4, 1999;

9 Page: 8 Decision No. 2408/10 (b) (c) (d) (iii) whether, under the 2006 claim, the worker has sustained a permanent impairment of her right and left wrists which would entitle her to a Non-Economic Loss ( NEL ) assessment; whether the worker is entitled to benefits for a neck and left shoulder condition which she claims can be related to either working with a broken keyboard tray or to the general nature of her duties; whether the worker is entitled to LOE benefits after November 6, This also involves a determination of whether the employer offered suitably modified duties. The worker s testimony [25] In her testimony, the worker confirmed that she had been with the accident employer since 1987 and had worked in a variety of clerical positions. At the time of the events of January 4, 1999, she was working in the hospital s emergency department. She worked eight hours a day, five days a week. She estimated that in a normal day, roughly six out of her eight hours would be spent keyboarding. Normally, there was another individual who worked with her. Her job duties included obtaining information from patients being admitted to the emergency department, discharging patients, obtaining information from ambulance personnel, adding medical information to patient charts, answering the phone and doing general clerical duties. [26] The worker testified that on January 4, 1999, the emergency department was busier than usual and she was working on her own for about 6.5 hours with no breaks. Normally, she had two 30 minute breaks during her shift. [27] The worker testified that when she went home that evening, she was experiencing pain in her left wrist and hand. She had never had any prior problems of this nature. [28] The worker described the setup of her work area in the emergency department and indicated that she worked at an L-shaped desk. Her computer was situated on the desk and the keyboard was slightly to one side. She recalled discussing the onset of her problems with her family doctor who indicated it was likely work-related. She testified she was not involved in any other activities that might have accounted for her wrist discomfort. At the time, she was kept busy by her three young children. [29] The worker could not recall exactly when she laid off work because of these problems but she remembered being off for about six months. She received short-term disability benefits from the employer and then employment insurance. [30] When the worker eventually returned to work, she was transferred to different areas because the employer had deemed that the work she was doing was too heavy for her medical condition. She recalled that in approximately 2001, she was transferred to the medical imaging department. There was not a lot of keyboarding involved in this job. The work consisted primarily of filing and pulling x-rays and talking to doctors. As time progressed, she also began to do some booking of appointments for radiological tests. The worker indicated that she still had some wrist pain although it was not as bad because there were three other people working in the area. The worker advised that as time passed, the pain began to radiate up her left arm into her shoulder and neck. She also had discomfort on the right side, although not as bad as the left.

10 Page: 9 Decision No. 2408/10 She dealt with her pain through a combination of physiotherapy and medication along with the occasional day off. [31] According to the worker, in approximately 2004, she returned to regular employment, working in radiology. [32] Under questioning from her representative, the worker described the events of November 2006 and she recalled working with a broken keyboard tray for about a week. The wobbly tray made it difficult for her to get a firm grip as she typed. As the pain in her upper extremities became worse, she went to see her doctor who provided her with some antiinflammatories and authorized her off work. She became concerned about the condition because her hands had started to swell. The worker visited the onsite medical staff and when asked about potential causes of the condition, the worker advised that the only thing she could think of was the broken keyboard. Given the worker s comments, the health staff suggested that she ought to be putting in a claim with the WSIB. [33] The worker did not return to work after laying off in November She was in a lot of pain and her family physician had indicated she should not return. [34] The worker recalled receiving a letter from the employer in approximately January 2007, outlining the availability of modified work. The worker advised the employer that she was in too much pain to do any type of work and had not been authorized by her physician to return. [35] The worker received long-term disability benefits for about two years. In 2009, her employment was terminated. She has not worked or looked for work since. She is not receiving benefits from any source. [36] The worker confirmed that she is right-handed. She has some pain in her right hand and elbow but it is not as severe as the pain on her left which extends from her hand up to her neck. This constant pain makes it difficult for her to do much around the home. Most of the work, including cooking and cleaning, is done by her family. Her current treatment consists of medication and exercise. She has not been seen by a specialist since She has been advised that her pain is chronic in nature and she must learn to live with it. (iv) Analysis [37] Since the worker was injured in 1999 and 2006, the applicable legislation is the Workplace Safety and Insurance Act, a) 1999 Claim initial entitlement for the left wrist [38] Board Operational Policy Manual Document No entitled Work Relatedness Definition of an Accident provides in part: Law Accident includes a willful and intentional act, not being the act of the worker a chance event occasioned by a physical or natural cause, and

11 Page: 10 Decision No. 2408/10 a disablement arising out of and in the course of employment. Guidelines Chance event A chance event is defined as an identifiable unintended event which causes an injury. An injury itself is not a chance event. Disablement The definition of disablement includes a condition that emerges gradually over time an unexpected result of working duties. Application date This policy applies to all decisions made on or after November 4, 1991, for all accidents. [39] Having had the opportunity to review all of the information before me and to consider the worker s testimony (something which was not available to the ARO) I am satisfied that there is sufficient evidence available to support a conclusion that the left wrist discomfort the worker experienced on January 4, 1999, was causally related to the nature of the duties she performed that day. As the policy suggests, this discomfort, which came on gradually, was an unexpected result of her working duties. In reaching this conclusion, I have taken particular note of the following: There is no evidence before me contradicting the worker s testimony that she had never experienced any left wrist problems prior to January The worker s testimony in this regard is supported by the notation from Dr. A. Tountas in his January 27, 1999 report that she never had similar symptoms in the past. In his Physician's First Report of January 6, 1998, the worker s family physician, Dr. Heath, noted the patient s history of injury to be working on keyboard pain L wrist. The medical restrictions suggested by Dr. Heath were light duty or [change] job. I accept the worker s testimony that the duties she performed on January 4, 1999, were different than those she normally performed. As the worker indicated, not only was she required to work on her own that day (where she would normally have the assistance of a co-worker) but it was a particularly busy day with more patients being admitted to the emergency department. The worker s testimony about the increased workload on January 4, 1999, was confirmed by the employer. In Memo #6 the Claims Adjudicator confirmed, after speaking with the employer, that the volume in emerg was extremely high with 70 patients going through emerg. On average there are patients seen through emerg and the worker was working alone on 04 Jan 99, due to the snow storm, the hospital was short staffed. In Memo #5 dated March 31, 1999, the Claims Adjudicator had noted, after speaking with the worker, that she explained that on an average day there are between patients that go through the emergency department.

12 Page: 11 Decision No. 2408/10 In a report dated January 27, 2000, Dr. Tountas, who diagnosed the worker as suffering from tendonitis and a apophysitis noted: I saw this 35 year old lady, a secretary ( ) who complains of pain in the volar aspect of her left wrist, towards the ulnar side as well as pain in the lateral epicondyle region of the same elbow. Her symptoms started gradually for the last month and they are exertional. She never had similar symptoms in the past. She denies any other symptoms. In his Physician's First Report, Dr. Heath diagnosed the worker as suffering from tendonitis L wrist and described symptoms of overuse syndrome L wrist. The Board s decision to deny initial entitlement is based to a large extent on the opinions provided by Dr. Boga and Dr. Grbac who were of the view that there was an absence of risk factors such as highly repetitious, forceful hand/wrist exertions, to support a relationship between the worker s left wrist problems and her work. In addition to preferring the medical opinions provided by the worker s treating physicians, who had the opportunity to examine the worker, I note there has been no alternate theory presented as to what might have caused this worker s left wrist discomfort. As the worker noted in her testimony, with her three young children, she was not involved in any other activities or hobbies which might have accounted for these symptoms. [40] In summary, after reviewing the available information, I am satisfied that the unexpectedly heavy workload with which the worker was faced on January 4, 1999, contributed significantly to the left wrist pain and discomfort which Dr. Heath and Dr. Tountas subsequently diagnosed as tendonitis. As such, the worker is entitled to be compensated. The issue of the nature and duration of that entitlement will be returned to the Board for further adjudication. b) Ongoing entitlement after November 6, 2006 [41] As noted in Memo #2, the WSIB originally granted the worker entitlement to health care and LOE benefits from November 6, 2006, for left shoulder and bilateral elbow, arm and wrist strain/sprains and tendonitis on an aggravation basis concluding that working with a broken keyboard tray aggravated pre-existing conditions. [42] In her testimony at this hearing, the worker acknowledged that she had been experiencing pain up her left and right arms (worse on the left side) for some time prior to the events in The worker s testimony about her pre-existing symptoms is confirmed by: the comments of the Board s Ergonomist in her December 14, 2007, report to the effect that the worker indicated that she always had some amount of pain in her wrists, elbows and shoulder (as per the previous claim) and, in her staff incident report of December 29, 2006, when asked to explain what happened to cause her condition, the worker indicated: typing on a broken keyboard rest for two weeks, workstation not ergonomically set up, this caused a flare-up of work-related strain and tendonitis that has been constant over the years.

13 Page: 12 Decision No. 2408/10 [43] When asked for an opinion on the relationship between the worker s problems and her duties on November 6, 2006, Dr. Grbac of the Board indicated, in Memo #12, that: Based on the assumption that the IW was working with a broken wrist rest for a period of one week, coupled with a prior ongoing wrist specific problem dating back to 1999, it would appear possible that a temporary aggravation of the pre-existing problem could have resulted in terms of the IW s wrists. [44] While the worker has acknowledged having pre-existing problems in her wrists prior to 2006, Board policy and Tribunal case law are clear that the presence of a pre-existing condition is not a bar to the receipt of benefits. If workplace events aggravate a pre-existing condition, workers are entitled to receive benefits until that condition returns to its pre-accident state. [45] In this case, I am prepared to accept the worker s testimony and the opinion of Dr. Grbac that working with a broken keyboard tray for one or two weeks likely aggravated the worker s pre-existing bilateral wrist condition. This is consistent with the opinion of the Board Ergonomist, who, in her December 14, 2007 report, noted that it is the opinion of this Ergonomist that use of a broken keyboard tray for approximately one week could have aggravated injuries to the bilateral wrists ( ). [46] As noted earlier, the Board initially granted the worker entitlement to LOE benefits for her aggravation until April 24, 2007, at which time the operating level determined that the aggravation had returned to its pre-accident state. The LOE benefits that were granted were subsequently rescinded with the operating level of the view that the employer had modified duties available since the date of accident. Having considered the information presented to me however, I find that I am led to a different conclusion. [47] In her testimony, the worker indicated that she did not recall any contact with the accident employer on the issue of modified work until approximately January 2007 when she received a telephone call about the possibility of returning to work. In her testimony, the worker indicated that she advised the employer that because of the ongoing pain she was experiencing, she did not feel capable of returning to any type of modified duties and that she had the support of her family physician in this regard. The worker s testimony in this regard is consistent with the contents of a January 29, 2007, letter from the employer s WSIB specialist which indicated in part: Thank you for taking the time to speak with me on 25 January At that time we discussed modified work and I advised you that according to the Functional Abilities Form for Timely Return to Work your physician indicated the following restrictions: Lifting at all levels less than 10 kilograms Limited bending, twisting and repetitive movement of left shoulder No above shoulder activity with left arm Limited ability to use left arm. As discussed, we are able to offer you modified work effective immediately performing the following tasks: Telephone work with the use of a hands free phone or headset Examining the content of file folders and discarding old/redundant information

14 Page: 13 Decision No. 2408/10 Preparation of packages for a specific programs You indicated to me that you would not be able to return to work to undertake modified work as advised by your physician. A copy of the job tasks offered has been faxed to your physician requesting a response to be sent to us if any of the tasks are not suitable in his/her opinion. Should you wish to undertake the work offered above, please do not hesitate to contact me, so that we can arrange a return to work date. [48] In a Functional Abilities Form for Timely Return to Work dated January 18, 2007, the worker s family physician, Dr. Earle, had advised generally not able to use left shoulder/over head. Similarly, as the Nurse Case Manager noted in Memo #16 of April 23, 2007, the worker s physiotherapist advised that he does not understand why worker has not returned to modified duties and he endorsed modified duties and graduated hours. [49] In light of the evidence outlined above, I am satisfied that while the worker continued to experience symptoms related to the November 2006 aggravation of her pre-existing wrist condition, by January 29, 2007, the employer had offered modified duties. The worker however, as she acknowledged in her testimony, indicated she was unable to perform any type of work, a position which does not appear to be supported by the comments of her family physician. Given Dr. Earle s recommendations in his FAF of January 18, 2007, I am satisfied that the worker could have performed the modified duties offered which consisted of telephone work, examining the contents of file folders and preparing packages for specific programs. [50] In an undated report addressed to the employer s insurer, Dr. Earle noted: ( ) We have discussed a return to work but [the worker] does not feel able to return to work largely because she is fearful a return to work will aggravate her already painful condition. It is probable she would only work for a few days and then have to leave again. Currently, I do not feel any typing or computed data entry is suitable for her as I am sure it would aggravate her wrist, elbow and shoulder sitting in front of a terminal for an extended period of time. She is not able to do any heavy lifting. Work such as light filing may be a possibility depending on the nature of the job. In a hospital setting the volume of work and pace of work might be an aggravating factor and I am uncertain if the employer can accommodate to this level. [51] I interpret Dr. Earle s comments to suggest that it was the worker, rather than he, who was fearful of a return to employment. I do not interpret Dr. Earle s comments to suggest that the worker would have been incapable of performing the modified duties offered by the employer. [52] As a result of the information outlined above, I am satisfied that the Board correctly granted the worker LOE benefits beginning November 6, 2006, on the grounds that working with a broken keyboard tray aggravated a pre-existing bilateral wrist condition. By January 29, 2007, however, the employer had confirmed an offer of duties which, in my view, were suitable for her medical condition. Rather than attempt the modified duties or discuss further modifications, the worker indicated she was incapable of performing any type of work. As such, I am satisfied it would be appropriate to terminate the worker s entitlement to LOE benefits as of January 29, 2007.

15 Page: 14 Decision No. 2408/10 [53] The worker has also requested that she be granted entitlement to a NEL assessment for her bilateral wrist conditions. After reviewing all of the material before me, I am satisfied that the balance of evidence supports a conclusion that the aggravation of the pre-existing left wrist condition which occurred on November 6, 2006, is permanent and the worker ought to be assessed for a NEL award. That being said however, I am not satisfied there is sufficient evidence available to support the granting of a NEL award for the worker s right wrist. In reaching that conclusion, I have taken particular note of the following: In a physiotherapy discharge report dated April 18, 2007, the worker s physiotherapist T. Fried noted: Patient s present complaints: Reports continued numbness in L hand & pain in L shoulder, pectoral region. Overall reports better mobility in L shoulder and arm but pain is the main symptom that is reported. ( ) The report does not list any complaints with respect to the worker s right wrist. In an Attending Physician s Statement prepared for the employer s long-term disability insurer, dated May 23, 2007, Dr. Earle described the pertinent symptoms as pain in left shoulder, left elbow & left hand and numbness in L arm and hand. With respect to the worker s functional limitations, Dr. Earle noted all use of left arm [illegible] causes pain. Once again, there is no indication of problems with the worker s right upper extremity. In a Physician s Statement of Disability dated March 5, 2006 Dr. Earle listed significant physical findings of pain soft tissue tenderness left shoulder & arm/painful ROM at wrist elbow & shoulder. Once again, no reference was made to the worker s right upper extremity. [54] In summary, I am satisfied that on November 6, 2006, the worker permanently aggravated a pre-existing left wrist condition and she is entitled to be assessed for a NEL award. The worker however, has no entitlement for her right wrist. [55] Finally, the worker has also requested that entitlement be extended to cover neck and left shoulder discomfort which she claims can be related to either her duties immediately prior to November 6, 2006, or working with the broken keyboard tray. While it is acknowledged that there is medical reporting on file which documents the worker s complaints of pain radiating up into the area of her left shoulder and neck, I was not referred to any medical evidence which suggested these conditions were related to either of the two factors listed above. [56] One physician who did address the issue of causation was Dr. Grbac of the Board who, in Memo #12, indicated that while it was possible the worker s wrists may have been aggravated by working on a broken keyboard tray: ( ) That being said, it is improbable that this same exposure to a defective wrist rest would have resulted in pathology involving the IW s elbows, left shoulder and even less so with regards to the IW s neck. With the correction of the defective wrist rest, a return to the IW s pre-injury status would have been expected within a short while. The accident history does not appear to support that the IW was exposed to any risk factors

16 Page: 15 Decision No. 2408/10 which would have resulted in either a cervical radiculopathy nor a rotator cuff tear as was indicated in the most recent Form 8. [57] Similarly, in her December 14, 2007, report the Board Ergonomist, while acknowledging that the worker s job of associate administrative medical imaging could have contributed to bilateral wrist problems, noted that the physical demands on the left shoulder were minor and as a result compatibility between the left shoulder injury and the job is not evident. [58] In his Health Professional's Report of September 1, 2007, the physiotherapist Mr. Fried, provided a diagnosis of suspected cervical radiculopathy L rotator cuff tear. After considering the matter, I find myself in agreement with the opinion provided by Dr. Grbac that there is insufficient evidence available to support a connection between typing on a broken computer tray for a week or two and/or the worker s clerical duties in the imaging department with either a rotator cuff tear or a cervical radiculopathy. As such, while the worker may well be experiencing pain and discomfort in her shoulder and neck, I am not satisfied that there is sufficient evidence available to conclude that either the broken keyboard tray or the nature of her duties contributed significantly to that condition.

17 Page: 16 Decision No. 2408/10 DISPOSITION [59] The worker s appeal is allowed in part. [60] The worker is granted initial entitlement to benefits for a left wrist condition occurring on January 4, The issue of the type and quantum of benefits flowing from this conclusion is returned to the Board for further adjudication. [61] The worker is entitled to LOE benefits from November 6, 2006 to January 29, She is not entitled to LOE benefits after January 29, 2007 as the employer offered suitably modified work. [62] The worker is entitled to a NEL assessment for her left wrist. [63] The worker has no further entitlement for her right wrist. [64] The worker has no further entitlement for her neck or left shoulder. DATED: March 22, 2011 SIGNED: R. Nairn