The Ontario Workplace Safety and Insurance Appeals Tribunal has dismissed the appeal of a worker suffering from pain in her back, neck, and shoulder for a lack of evidence the symptoms were related to her job that included a significant amount of repetitive lifting over several years.
The 55-year-old worker was hired by a clothing manufacturing company in 1993 to work in the company’s leather goods department. Over the next few years, she worked her way up through the business — working in the packing area for a couple of years — and became a production co-ordinator for leather products in 1995.
Her production co-ordinator position involved assigning the type of leather bags to be produced to 15 groups of workers in the plant. Some of the bags were smaller and some were large travel bags. She frequently had to lift and move boxes and rolls of leather and hardware to each group of workers using a dolly. Some boxes could weigh up to 40 kilograms and she would seek assistance in lifting the heavier boxes. She performed these duties for 16 years.
The worker didn’t recall receiving any safety training from the company and she had no involvement with workers’ compensation forms filed by employees. She hurt her foot at home in April 2010 and was off work for two months — but didn’t file a workers’ compensation claim because the injury didn’t happen at work. A few months later, in November 2010, the worker saw her physician complaining of left knee pain, so she was sent for an x-ray with the suspicion of osteoarthritis.
In December 2010, the worker began feeling pain in her neck, upper back, left shoulder, and down her left arm. She claimed she advised her supervisor, who had recently replaced her previous longtime supervisor after the latter’s retirement, but no record was made of it. She had never been in an accident, played any sports, or had any hobbies that required repetitive use of her neck, left shoulder, or left arm. In addition, the worker was righthanded.
The symptoms worsened over the next couple of months until she had to take a day off work on Feb. 1, 2011. A week later she saw her family physician for coughing and other flu symptoms, along with the pain and pressure in her neck and shoulder. The physician gave her a note saying she needed to take two weeks off work but with no indication of the reason or if it was related to her job.
However, the worker’s pain continued and she couldn’t return to work after two weeks. She continued to see her doctor for evaluations on whether she could return, as she liked her job and didn’t want to be off. On Feb. 14, the worker reported to her doctor that the pain had been more intense over the past few days. On March 3, the physician provided a note that stated the worker “decided to stay off work.” With each visit, the doctor provided a similar note indicating she had to stay off work. The company provided her short-term disability benefits and she was referred to a physiatrist.
In August, the worker was still off work and complained to her doctor for the first time about pain radiating down to the left elbow. The physiatrist reported that an MRI of the worker’s spine was normal but she now had pain around the forearm and elbow, in addition to her neck and shoulder.
Job duties caused repetitive strain injury: Worker
The worker filed a claim in late 2011 for workers’ compensation benefits for a gradual-onset repetitive strain injury to her neck, back, and shoulder, due to heavy lifting in her job over a period of 18 years, which manifested in symptoms in February 2011. She noted that her delay in reporting the injury was due to unfamiliarity with the workers’ compensation process and she had claimed short-term disability benefits first because she had hoped to be able to return to work within a short time.
The Ontario Workplace Safety and Insurance Board (WSIB) denied the worker’s claim, finding the worker’s job was not repetitive in nature and there had been no change in her duties leading up to the onset of symptoms. Since the worker’s pain worsened 10 days after she initially stopped working and increased in range without her returning to work, the WSIB ruled there was an alternative explanation for the worker’s symptoms. An appeals resolution officer agreed with the WSIB’s ruling and the worker took her case to the tribunal.
The tribunal found that it was likely the worker’s symptoms had an alternative cause other than her employment. It agreed with the WSIB that the fact that the worker’s pain increased after she was off work for several days and changed in pattern after a few months off work undermined the argument that there was a causal connection between the worker’s job duties and her symptoms. For example, the worker initially went off work with neck and back pain and she later developed pain in her shoulder and down her arm, the tribunal said.
The tribunal also found that there was no evidence the worker complained of pain in her neck, back, or shoulder to her employer, despite her claim to the contrary. Even if she did mention it to her supervisor, there was no formal reporting of the injuries. In addition, she didn’t see her family doctor until seven days after her last day at work, and that was for flu symptoms in addition to the pain.
Finally, the tribunal found that none of the notes provided by the worker’s physician or the medical reports had any indication that the worker’s issues were tied to her job duties. As a result, there was nothing supporting the worker’s claim that the pain in her neck, back, and shoulder arose out of her employment. The tribunal dismissed the worker’s appeal.
For more information see:
• Decision No. 2999/16, 2016 CarswellOnt 20304 (Ont. Workplace Safety & Insurance Trib.).
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