Worker claimed new injury was caused by overuse of right hand in modified duties
An Ontario worker’s right shoulder injury is unrelated to modified job duties he performed after injuring his left hand at work, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled.
The worker was a packager at an industrial bakery in Ontario. He worked in the position for four years until Jan. 3, 2010, when he caught his hand in a conveyor belt and injured it. He was immediately taken to the hospital, where x-rays revealed a small, undisplaced fracture of his left thumb.
Two days after the workplace accident, the worker saw a specialist who recommended putting the thumb in a splint and a gradual program of physiotherapy. Shortly thereafter, the worker’s family physician completed a functional abilities form that indicated the worker could return to work full-time as of Jan. 6, but could only perform duties that didn’t involve the use of his left hand and arm.
The worker received workers’ compensation benefits for the injury from the Ontario Workers’ Compensation Board (WSIB) and returned to modified duties with his employer. After his return, he continued to consult regularly with the specialist.
Two months later, in March 2010, the worker developed pain in his left palm between the index and middle fingers. By July, the specialist found the worker’s thumb had healed completely, but the worker continued to experience ongoing pain in his palm. Because of the pain, the specialist felt the worker would need permanently modified work that minimized repetitive use of his left hand and excluded any repetitive grip and release actions, pushing and pulling, or lifting over 10 pounds. The specialist also recommended rotation of duties every hour.
Medical restrictions for return to work
The worker’s pain continued to worsen and he went to a hand specialty clinic for aggressive physiotherapy. On Nov. 2, the return-to-work co-ordinator at the clinic reported that the worker’s functional status had improved to the point where he could lift up to 22 pounds, perform light gripping and handling, and perform limited repetitive gripping and pinching. The return-to-work plan that was developed included 15 minutes of work on the production line for 15 minutes, then 45 minutes of light tasks – to be repeated every hour during the shift.
Over the next month, the worker’s progress plateaued and he was discharged from the hand clinic.
The worker indicated he wanted to return to work with the employer and the specialist recommended he work on the production line for no more than two to three hours per day at his own pace, alternating line work with non-manual work, avoiding repetitive gripping, and limiting lifting to 20 pounds. The worker returned to permanent modified duties on a tortilla line in mid-December.
The worker’s modified duties involved rotating between placing stacks of tortillas into bags and sealing the ends of bags together. He wasn’t required to perform stacker duties, which involved stacking bags of tortillas onto trays.
On Jan. 6, 2011, the worker saw his specialist after experiencing increased pain in his left hand. The worker said he couldn’t work with his left hand any longer, but the specialist reiterated the earlier restrictions from his return to work.
The worker went to his physician some months later and, in July, got his doctor to fill out a new functional abilities form. The new form recommended the worker not use his left hand at all going forward. In August, the specialist maintained the original restrictions involving light use of his left hand.
Modified duties assessed
A physiotherapist conducted a functional work capacity assessment at the bakery on Dec. 6. She noted the production line was set up for right-handed bag packing and most workers were right-handed. When workers had to partially lift the stack of tortillas to slide them into bags, this could be done by one hand – which the worker did with his right – though some occasionally used both hands.
The physiotherapist concluded the position on the tortilla line was suitable for the worker’s left hand injury, and the worker continued to work in the position until the facility closed in June 2013. The employer offered the worker another position at another location, but the worker decided to accept a severance package.
The worker visited his family physician on Nov. 5 complaining of pain in his right hand. No treatment followed, and he went to the emergency room in January 2013 with right shoulder pain. A preliminary diagnosis of bicipital tendonosis was made, but an ultrasound came back negative.
The worker filed a workers’ compensation claim for an injury to his right shoulder caused by overuse of that hand, which was a result of the injury to his left. He argued the right injury was a secondary injury from his compensable original injury and the repetitive work duties from the tortilla line. According to the worker, his right shoulder deteriorated to the point where he could only use his right arm for the lightest tasks.
A WSIB appeals resolution officer denied the appeal, finding the duties the worker had been given upon his return to work were suitable. The worker appealed to the tribunal.
The tribunal noted that the only medical restrictions for the worker’s return to work were for his left hand. Since the worker primarily used his right hand on the tortilla line, there was no reason to limit his time on the production line and rotate him to other tasks.
Though an WSIB policy document directed that the safety of a job offered to an injured worker shouldn’t cause re-injury or a new injury, the tribunal found there was “no objective evidence which demonstrates that the worker was at an increased risk of injury to his right hand as a result of performing the duties of bagger on the tortilla line.”
The tribunal also found the duties didn’t involve any awkward position of the hands, requiring only “a slight shifting action of a light weight in order to slide it into the bag and did not involve repetitive or forceful pinching or gripping.” The physiotherapist’s assessment backed this up.
In addition, the tribunal noted there was no medical evidence that the worker had a prior injury or condition of his right hand that could make an injury more likely.
The tribunal found it wasn’t always possible to predict when injuries can happen without evidence of an increased risk. Functional restrictions can be set to protect from re-injury, but the “general susceptibility to future injury faced by any worker” was impossible to predict. In this case, assessments were made to protect the worker’s injured arm and hand, and it couldn’t be predicted how the work would affect his uninjured right hand, said the tribunal.
The tribunal found that, based on the assessments and the worker’s demonstrated capacity to use his right hand, the tortilla line position was suitable for the worker.
The tribunal found that while there was some evidence of pain hi the worker’s right shoulder, there was no confirmed diagnosis or any medical documentation supporting the claim that any right shoulder problems were related to his duties on the tortilla line that he had stopped months earlier.
Without anything supporting the claim that the worker’s right shoulder problems were related to his job duties on the tortilla line — or any medical opinion that there was a risk of such an injury from those duties — the tribunal dismissed the worker’s claim for entitlement for a secondary injury stemming from his original left hand injury.
For more information see:
• Decision No. 2000/15, 2016 CarswellOnt 15613 (Ont. Workplace Safety and Insurance Appeals Trib.).
