SUMMARY. Disablement (repetitive work); Transportation industry (bus driver); Epicondylitis.

Transcription

1 SUMMARY DECISION NO. 1200/99 Disablement (repetitive work); Transportation industry (bus driver); Epicondylitis. The worker appealed a decision denying him initial entitlement for left lateral epicondylitis which he claimed was a disablement that arose out of and in the course of his employment. The worker was 41 years old at the time of the hearing. He began working for the employer as a bus driver in August In August 1996, the worker reported that he had a gradual onset of pain in his left elbow and lower left arm. He was left hand dominant. The pain was diagnosed, by his family physician and by an orthopedic surgeon, as left lateral epicondylitis. The worker had worked as a bus driver for five years with another company prior to starting to work for this employer. The Panel was satisfied that the worker's job involved repetitive wrist, hand and elbow movement, as well as repetitive gripping, and that much of this activity was against resistance. These activities were required to constantly steer the bus, to repeatedly open and close the doors, and to frequently change the destination sign. All of the worker's treating physicians attributed the development of his left lateral epicondylitis to his work duties. The Board doctor, who was of the opinion that there was no relationship between the nature of the worker's employment and his left tennis elbow, focused only on the reaching required in the job and did not account for the gripping, pushing, and pulling against resistance. The Panel preferred the opinions of the worker's treating physicians who were more fully aware of the physical demands of his job. Aside from his work, there was no clear cause to account for the onset of the worker's symptoms. The appeal was allowed. [10 pages] DECIDED BY: Sutherland; Anderson; Fay DATE: 02/09/99 ACT: WCA

2 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1200/99 [1] This appeal was heard in London on July 7, 1999, by a Tribunal Panel consisting of: S.J. Sutherland: Vice-Chair, C.A. Fay : Member representative of employers, J. Anderson : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appealed from the decision of the Appeals Officer, V. Rabbito, dated September 30, In this decision, the Appeals Officer denied the worker initial entitlement to left lateral epicondylitis that the worker claimed was a disablement that arose out of and in the course of his employment. [3] The worker appeared and was represented by P. Mennie, of the Canadian Auto Workers Union. [4] The employer appeared in the persons of its WSIB Administrator and Employment Officer, and was represented by P. Harris, a consultant. THE EVIDENCE [5] The Panel had before it the Case Record in two volumes, and two Addenda prepared by the Tribunal Counsel Office. These were marked as Exhibits #1 to #4, respectively. [6] The worker gave evidence under oath. Messrs. Mennie and Harris made brief opening remarks and closing submissions. THE ISSUES [7] The Panel must determine whether there is a causal relationship between the nature of the worker's employment and the development of his left lateral epicondylitis. THE REASONS (i) Background [8] The worker was 41 years old at the time of the hearing. He began working for the employer, as a bus driver, in August In August 1996, the worker reported that he had a gradual onset of pain in his left elbow and lower left arm. The pain was diagnosed, by his family physician and by an orthopedic surgeon, as left lateral epicondylitis. The worker and his treating physicians attributed this condition to the operation of various controls in his bus. [9] The Benefits Adjudicator denied the worker s claim for benefits, after receiving an opinion from a Unit Medical Advisor. The Appeals Officer upheld the Benefits Adjudicator decision.

3 Page: 2 Decision No. 1200/99 [10] The worker has appealed to the Tribunal. (ii) The worker s testimony [11] It was the worker s evidence that he worked for the accident employer, as a bus driver, for about two years before developing his left lateral epicondylitis. He worked as a bus driver for another company prior to starting to work for this employer. In total, he had been employed as a bus driver for about seven years before the left elbow condition developed. [12] The worker testified that he first noticed the pain in his elbow about mid-june 1996, before he went on vacation. The pain became progressively worse as time went on. By the time he laid off work in August 1996, the pain was severe. [13] The worker stated that he consulted his family physician, Dr. J.M. Stewart, about the pain in his elbow and Dr. Stewart recommended that he take some time off. At this time, the pain was constant, was keeping him up at night, and was not getting better on his days off. [14] The worker testified that Dr. Stewart referred the worker to his brother, Dr. R.G. Stewart, an orthopaedic surgeon, for a second opinion. Some time later, the worker got a third opinion from Dr. K. Burgess. It was the worker s recollection that he described his job duties to these physicians and they each said that the epicondylitis was work-related. [15] In response to a question from Mr. Harris, the worker said that he did not consult his family physician for a month and half after he first noticed the pain, because he assumed the problem was caused by overwork. He reported the injury to the employer on the day that he saw Dr. Stewart. Before reporting it to the employer, he had complained to co-workers but not to his supervisor or the dispatcher. [16] The worker described his job duties for the panel, as follows. [17] He worked an 8 hour shift and changed buses every couple of hours. He had a 1/2 hour meal break. There were no other scheduled rest breaks but there were periodic naturally occurring breaks. He is 6 3 tall and left-hand dominant. He does not have epicondylitis in his right arm. [18] The buses that he drove had a console on the driver s left side. This console was about one foot below his elbow and was too low to be used as an arm rest. The handle that operated the doors extended up from the console. This handle was L shaped and used air pressure to operate. There are differences among the buses but on most the height of the lever is just below table level and he was required to slightly extend his left arm to reach the handle. Some buses required that he reach down. Some required that he reach further ahead. The worker acknowledged that there was disagreement with his management about the number of times he had to open and close a bus door in a shift. He stated that the number of times he did this depended, in part, on the route he was driving. At busy times of the day, he had to stop at every bus stop. There might be half a city block between stops. When it was less busy, he might have to open the doors every second or third stop. This would be every one to two minutes. There are about 60 stops each way on a route. It takes about 35 minutes to complete the route in each direction (i.e., 35 minutes out and 35 minutes back).

4 Page: 3 Decision No. 1200/99 [19] Mr. Harris pointed out that the worker s epicondylitis appeared to have developed when his workload got smaller. The worker answered that although there were fewer students, this did not make much difference in the number of times that he was required to open and close the door. [20] In response to questions from Mr. Harris, the worker said that he had to grip the handle and push it. There are four different settings. He had to push the handle forward to open the front door; farther forward to open the back door; and pull the handle backward on two settings to close the doors. On those buses where the handle was farther forward, he was uncomfortable because he had to stretch and extend his arm further. [21] The worker said that he had to reach up and manipulate a toggle switch to change the signs, every 30 minutes. Some buses were computerized. On these he punched a number code in a console that was above the windshield. He did not stand in either case; he stretched and pushed the buttons or toggled the switch. [22] Every bus had a maxi-brake to hold it in the parked position. This was only used when the bus was parked. The brake was below the driver on the left side. The handle is small and circular. He had to reach down and lift it to release the brake and push the handle to apply the brake. He would do this about five or six times per shift. [23] The steering on every bus was different. They all had an oversized steering wheel. However, even with power steering, it was hard to turn corners. On some stops he had to pull off the road and then pull back into the traffic. [24] Mr. Harris referred the worker to a job description prepared by the employer's safety director. The worker stated that the description sounds reasonable. [25] Mr. Harris commented that from the outset of the claim, the Board believed that the worker attributed his left lateral epicondylitis to the opening and closing of the bus doors. The worker responded that it was all his job duties. Although the buses had power steering, he used primarily his left hand to steer and kept his right hand on the bottom of the steering wheel. He used his left hand to change the signs. This was above his head and the amount of pressure required on the computerized buses was greater than that needed to operate an automatic teller machine. The only things he used his right hand for were to hand out transfers and operate the fare box. [26] The worker testified that when Dr. Stewart told him he could return to modified work, there was no work available except driving a bus. He did not grieve the unavailability of modified work. He returned to work, two hours per day, driving a bus, and gradually worked up to full-time. [27] It was the worker s evidence that his left arm was still bothering him from time to time. He sometimes has to work seven days per week and by the fourth day his arm hurts sufficiently that he begins to use a brace. [28] In response to questions from Mr. Harris, the worker acknowledged that he was sitting spare before June 15, He explained that the spare driver took over when a regularly scheduled driver was unable to work for any reason. It could happen that the spare driver would sit for a full eight hours but this would be unusual. Mr. Harris asked the worker about his off

5 Page: 4 Decision No. 1200/99 hour activities. The worker answered that he was a fisherman and had been a drummer in a band for eight years before starting to work for his previous employer. (iii) The medical evidence [29] The worker's family physician, Dr. J.M. Stewart, reported, on July 25, 1996, that the worker had pain in his left arm and elbow. Dr. Stewart diagnosed the pain as tennis elbow and attributed this condition to the worker repetitively using his left hand to open and close the door on his bus. [30] On August 13, 1996, Dr. Stewart stated that the pain in the worker's left elbow had caused him to lay off on August 7, Dr. Stewart again attributed the left lateral epicondylitis to the nature of the worker s job duties. [31] On August 21, 1996, Dr. Stewart reported that the worker had mild lateral epicondylar pain and some mild swelling but was going to try and return to work. On August 27, 1996, Dr. Stewart said that the worker's pain had increased with the attempted return to work and he had laid off again. [32] On August 27, 1996, Dr. Stewart wrote a note on his prescription pad authorizing the worker s absence from work from August 7, to August 25, and from August 27, to September 16, [33] The Benefits Adjudicator requested a medical opinion with respect to whether the worker s tennis elbow was caused by the nature of his work. The Unit Medical Advisor, Dr. G. Shapiro, responded on August 28, Dr. Shapiro said: I do not see a causal relationship between the left tennis elbow and the job performed given the intermittent and relatively light left arm activities required. [34] Dr. Stewart wrote a letter in support of the worker's claim, on September 9, He stated that the worker: uses his left hand to maneuver a lever that opens a door approximately times per hour, in the area of times per day. He is unable to use his right hand for the door hoping level. He also uses his left-hand to change the sign above him approximately 50 times per day. [35] Dr. Stewart submitted a Physician s First Report on September 12, He diagnosed lateral epicondylitis and said that he first treated the worker for this condition on July 25, [36] The worker consulted an orthopedic surgeon, Dr. R.G. Stewart, on September 27, The orthopedic surgeon diagnosed left lateral epicondylitis and said that it might always bother him. [37] On October 9, 1996, the Benefits Adjudicator advised the Unit Medical Advisor that the worker was left-handed and the employer had submitted further information with respect to the nature of his job activities. The Benefits Adjudicator asked 40 further medical opinion. Dr. Shapiro responded, on October 10, 1996, that his opinion was unchanged. [38] The vocational rehabilitation Caseworker prepared a job description on December 10, Dr. Shapiro reviewed this and said, on December 19, 1996:

6 Page: 5 Decision No. 1200/99 The job description of 10 Dec. 96, obtained by the caseworker, was noted and I still do not see a causal relationship between the left tennis elbow and the job performed as a bus driver. This report indicates that repetitive reaching with the left arm is required during busy periods but the job does not appear to be sufficiently strenuous, especially to the extensor muscles of the left forearm, to produce inflammation in the region of the left lateral epicondyle. [39] The worker attended the Occupational Health Clinic for Ontario Workers in July 1997, where his condition was assessed by K. Burgess, an occupational health physician, and H. McRobbie, an ergonomist. The ergonomist reviewed a job description prepared by a vocational rehabilitation Caseworker in December 1996 and concluded that the worker's job activities may have contributed to [his] lateral epicondylitis. [40] Dr. Burgess agreed that the repetitive activities involved in the worker s job as a bus writer and the lack of any other reasonable explanation for the onset of his symptoms [made it] reasonable to conclude that the patient s health problem is work-related. (iv) The job descriptions [41] On October 4, 1996, the employer provided the Claims Adjudicator with the following estimates: Week 1: 100 door openings/closings and 32 to 40 sign changes per shift; Week 2: 150 to 200 door openings/closings and 32 sign changes per shift; and Week 3: 300 door openings/closings and 32 to 40 sign changes per shift; [42] The employer stated that these estimates were based on summer service where passenger load is lighter. The employer also noted that 2/3 of the buses had computerized electronic signs that were easier to operate than those that required holding a button. [43] On December 3, 1996, the Board s Vocational Rehabilitation caseworker visited the employer's garage and developed a job description that the worker agreed was accurate. This job description contained the following physical demands: Gripping: pinch grip - frequent - to operate the switches both to the left and to the right as well as to operate destination changes; constant gripping using both hands on the steering wheel Reaching: repetitive reaching with left-hand to the switch panel, the door open/close (a maximum of 120 times per hour during the busy period) occasional with the left in upwards and extended reach to the intercom, the destination control panels occasional - close to body and backwards reaching where the switch panel and maxi brakes are located to the rear of the driver repetitive with the right hands/arm in an extended forward position to give transfers to all passengers occasional - extended forward reaching for the intercom which may be to the left or the right depending on the bus in use

7 Page: 6 Decision No. 1200/99 Push/Pull: constant on steering wheel pulling with left in upwards direction from the waist and floor level to release the maxi brake movement is against resistance with left-hand/arm at waist height towards the body model [44] The materials contained an undated draft Ergonomic Study of the Bus Driver s Workstation that was prepared for the Canadian Urban Transit Association by Genicom Inc. Consultants. The study gives the amount of force necessary to open and close the doors on the two kinds of buses driven by the worker. There was also a Physical Demands Analysis for a Bus Driver working for this employer. This report was prepared by S. Dolbeck, an Ergonomic Specialist with the Canadian Back Institute, and was dated March 24, The following information is relevant to this appeal: Activity Body Part Frequency (% of shift) Mass Usual Comments Pulling Chest 34-66% Force 32 <12 Turning steering wheel between 65-70% of time, depending on route, Pulling parking brake 32 lbs. force Reaching Vibration Bench Shoulder Ab/ Adduction Whole Body Segmental % reach to door release handle. Max 44 reach with left arm to mirror. Max. 38 reach with right arm to 2-way radio ( 88 model). Reaching distances will likely be less vary with each driver % Steering bus. Reach up to 32 horizontally. May be less frequent if feed steering wheel through hands. Reach door release % % Vibration dampened with shocks and seat or cushions on some buses. Steering wheel 94 models have constant vibration (approx. 50%). [45] The materials also contained a report prepared by S. Gibbons, a Board ergonomics specialist, in The purpose of this report was to determine if there are significant risk factors evident in the worker s pre-injury job of Transit Operator which would have contributed to his right elbow epicondylitis. Although this report was prepared with respect to another worker s claim, this worker s job duties would have been similar, except that he used his left arm, mainly for steering. The following excerpts are relevant to this appeal.

8 Page: 7 Decision No. 1200/99 (v) The extended arm reaches cause increased loading on the elbow joint soft tissues. The arm is not in a preferred posture with some elbow flexion and thus there are greater forces acting on the soft tissues at and around the elbow joint. There is increased muscle tension in the forearm extensor muscles due to the way to hand grips the steering wheel while the arm is fully extended. There is little to no muscle recovery time as the worker is continually turning the steering wheel (15 times) during each of his 20 minute cycles. This extended arm posture, constantly repeated, can contribute to over loading of the forearm extensor muscles and the tendons of insertion at the elbow joint. The slight twisting of the forearm will also contribute to increased forces acting on the elbow joint soft tissues. As the right hand crosses over while turning the steering wheel (or under for opposite turn), the forearm twists to move from a semi-pronated to fully pronated posture. The twisting of the forearm increases the loading on the tendons of insertion at the elbow joint. Since this occurs constantly, there is a risk of overloading the tendons during the shift. It is a significant concern when this forearm twisting movement is combined with full arm extension. Some hand force has to be applied to grip and turn the steering wheel of the bus. Since both hands are required to turn the steering wheel, the force to move the steering wheel is distributed between both hands. Power hand grips are used as the fingers wrap around the steering wheel which is approximately 2.5 to 3.0 cm thick. The force to turn the steering wheel was measured and found to be 10 to 12.5 pounds for the 1994 (9414) bus series and 10 to 15 pounds for the 1992 (9203) series. As the buses age, the steering becomes sloppier and it can be easier to turn the steering wheel. With the 1992 series, the force should be slightly less but it can also be as great as 15 pounds depending on the condition of the bus. These forces measured indicate that the hand forces involved are light to moderate. These are not considered to be high hand forces. However, it does indicate that hand force is involved with turning the steering wheel. As well, it has already been demonstrated that the turning of the steering wheel occurs constantly throughout the shift so the gripping is constantly performed. The light to moderate hand grips involved with turning the steering wheel can contribute to increased loading of the soft tissues in the forearm. Static loading of the forearm extensor muscles can occur as the gripping is constantly repeated with little to no muscle recovery time. Over the course of the shift, the muscle tension in the extensors builds up. This can cause increased forces to act on the soft tissues at the elbow joint. The law and Board policy [46] On January 1, 1998, the Workplace Safety and Insurance Act (WSI Act) took effect. This legislation amends portions of the Workers Compensation Act, which continues to apply to injuries which occurred before January 1, All references to the Act in this decision mean the Workers Compensation Act as it read on December 31, 1997, unless otherwise indicated. [47] Section 4(1) of the pre-1997 Workers Compensation Act provides that where personal injury by accident arising out of and in the course of employment is caused to a worker, the worker is entitled to benefits in the manner and to the extent provided by the Act. Tribunal cases generally have interpreted the test for causation to be whether the work accident was a significant contributing factor to the disability. [48] A change that is relevant to this appeal is that the Appeals Tribunal is now required to apply Board policy in accordance with sections 112 and 126 of the WSI Act. Prior to this, the Tribunal did consider and apply Board policy in deciding appeals, although the prior Act did not contain this express provision.

9 Page: 8 Decision No. 1200/99 [49] As is required by section 126 of the WSI Act, the Board advised the Tribunal of the policies that are applicable in this appeal. (vi) Conclusions [50] The Panel must determine whether there is a causal relationship between the nature of the worker's employment and the development of his left lateral epicondylitis. For the reasons that are set out below, we find that there was. [51] The Panel members are satisfied, both from the worker's testimony and from the job descriptions before us, that the worker s job involved repetitive wrist, hand, and elbow movement, and repetitive gripping, and that much of this activity was against resistance. [52] There is disagreement between the worker and the employer with respect to the number of times that he was required to open the bus door. The employer's lowest estimate was 100 times per shift in one week out of three. This estimate was 50 percent higher in the second week of three, and triple the lowest estimate in the third week. Even using the employer's estimates, the worker must have opened and closed the door every 2.46 minutes, on average. However, we are not convinced that the lateral epicondylitis was caused only by opening and closing the door, and believe that the evidence indicates that it was caused by the constellation of his duties. [53] All of the worker s treating physicians attributed the development of his left lateral epicondylitis to his work duties. The Board's Medical Adviser, Dr. Shapiro, opined that there was no relationship between the nature of the worker s employment and his left tennis elbow. This opinion was first given less than a month after the worker laid off. Dr. Shapiro did not have the benefit of a job description when he expressed it. A month later, Dr. Shapiro asked whether the worker was right or left-handed and for clarification of the physical demands of the job. It was at this point that the Claims Adjudicator obtained a job description from the employer. As noted in section (iv) the employer provided information about the number of door openings and closings and the number of sign changes. Later, the vocational rehabilitation caseworker developed a job description. Both these documents were given to Dr. Shapiro but it appears from his comments that he continued to focus only on the reaching required in the job and either did not notice or was unaware of the gripping, pushing, and pulling against resistance. Dr. Shapiro could not have been aware of the vibration that was also involved because the report that documented the vibration was not prepared until March In the circumstances, the panel members prefer the opinions expressed by the worker s treating physicians who were more fully aware of the physical demands of his job than was Dr. Shapiro. [54] The Panel members have also reviewed the extensive medical literature that was provided to us, on the subject of the development of epicondylitis. We note that the medical literature is supportive of the worker s claim in the sense that the picture presented by the worker is not unusual. Specifically, there is a gradual onset of symptoms with symptoms being present initially only during forceful activity. As the inflammation progresses, the symptoms may be experienced with light activities or even at rest. [55] We found the worker to be a credible witness with a relatively long work history as a bus driver. We note that the worker did not engage in any sporting or other similar activities that could be a factor in the development of his left lateral epicondylitis. In effect, besides his work, there is no clear cause to account for the onset of his symptoms.

10 Page: 9 Decision No. 1200/99 [56] When we considered the medical evidence, in the context of the worker s testimony and explanation of his work duties, along with the job descriptions that were before us, we were satisfied that the worker was entitled to benefits for left lateral epicondylitis, which we find, on a balance of probabilities, was causally related to his work. THE DECISION [57] The appeal is allowed. The worker is entitled to benefits for left lateral epicondylitis. DATED: September 2, 1999 SIGNED: S.J. Sutherland, C.A. Fay, J. Anderson