[1]                                         The worker appealed from the decision of the Appeals Resolution Officer, D. DeRose, dated February 15, 2013. In that decision, the Appeals Resolution Officer concluded that a full thickness rotator cuff tear in the worker’s right shoulder did not result from a lifting incident that happened on March 31, 2011; the worker was not entitled to a non-economic loss (NEL) award for the residual permanent impairment in her right shoulder; and the worker was fit for suitable and available work provided by the employer at no wage loss. Therefore, she was not entitled to further benefits or services in the claim.

[2]                                         The Appeals Resolution Officer’s decision followed an oral hearing.

[3]                                         The issues to be determined in this appeal are whether:

[4]                                         The following are the basic facts.

[5]                                         The now 66-year-old worker began working for the employer, as a part-time child-care assistant (CCA), in October 1996. She has had the following compensable injuries:

[6]                                         In addition to the above, on April 27, 2009, the worker submitted a claim for anxiety and depression due to “ongoing verbal harassment” by a co-worker. The Board denied that claim on the ground that it was a labour relations/employment issue.

[7]                                         The injury from which this appeal arises happened on March 31, 2011 (Thursday). The worker reported that repetitively picking up infants and putting them down resulted in an injury to her right shoulder and arm. The employer provided modified job duties, which the worker did for the next two days. Her pain became more severe over the weekend and she advised the employer of the worsening when she arrived at work on Monday, April 4, 2011. She left work when the employer found a replacement and consulted her family physician, Dr. J. E. Choe. Dr. Choe reported that the worker had a decreased range of motion in her right shoulder. He diagnosed a repetitive strain/tendinitis in the shoulder and a neck sprain. He said that the worker was to avoid using her right arm for lifting and carrying for the next two weeks and he referred her for physiotherapy.

[8]                                         The Eligibility Adjudicator spoke with the worker on April 14, 2011. During that conversation, the worker stated that her shoulder pain developed on March 31, 2011, when she lifted an infant who was being aggressive with another baby. The worker was hunched over and lifted the infant from the floor. The Eligibility Adjudicator allowed the worker’s claim as a disablement (unexpected result of work duties).

[9]                                         In a letter dated April 6, 2011, the employer offered the worker modified job duties, working with kindergarten and school-age children in the morning and preschool children in the afternoon. The employer said that since Dr. Choe had not provided functional restrictions, the offer was based on standard restrictions for a shoulder injury, which were:

[10]                                      The materials show that the worker performed modified duties on April 7, and 8, 2011.

[11]                                      Dr. Choe wrote a note on April 11, 2011, in which he said: “[the worker]’s condition is not improving despite modified duties. She is recommended to be off work this week to continue with her treatments.”

[12]                                      The worker’s right shoulder was x-rayed and investigated with an ultrasound on April 13, 2011. The x-ray report said: “Osteoarthritis and changes suggestive of old trauma to the greater tuberosity.” The ultrasound found a full thickness tear of the right rotator cuff.

[13]                                      Dr. Choe completed a form titled “Health Professional’s Report of Worker’s Function” on April 15, 2011. He stated that the worker was having physiotherapy and was being referred for further investigations and to a specialist. He commented “may require surgery.” Under the heading “Estimated Recovery Time,” Dr. Choe wrote “unknown, months.”

[14]                                      A Case Manager spoke with the worker on April 21, 2011. The worker told the Case Manager that she worked on April 5, 6, 7, and 8, 2011. She stated that she did not work after April 8, 2011 because Dr. Choe advised her not to do so. In any event, she did not feel capable of working. She also told the Case Manager that she had an ultrasound on April 13, 2011, was waiting for an MRI, and had been referred to a specialist.

[15]                                      On April 21, 2011, the Case Manager denied the worker loss-of-earnings benefits because the employer had offered suitable modified job duties and the medical information on file did not support a finding that the worker could not perform the offered job.

[16]                                      On April 27, 2011, Dr. Choe said that the worker was “unable to work due to severe pain/dysfunction.”

[17]                                      The worker submitted an Intent to Appeal form to the Board on May 9, 2011.

[18]                                      The worker consulted Dr. T. Chan, an orthopedic surgeon, on May 19, 2011. Dr. Chan arranged for the worker to have an MRI.

[19]                                      The physiotherapist who was treating the worker submitted a report on June 4, 2011. The physiotherapist’s working diagnosis was a right shoulder strain. The physiotherapist indicated that the worker should not use her right shoulder repetitively, lift, carry, or perform above-shoulder-level activities.

[20]                                      An MRI of the worker’s shoulder was done on June 14, 2011. The report said “Advanced full-thickness rotator cuff tear involving primarily supraspinatus tendon.”

[21]                                      The physiotherapist submitted Treatment Extension Requests on June 27, 2011 and July 19, 2011. Her working diagnosis continued to be a right shoulder strain.

[22]                                      The Case Manager advised the worker, on July 28, 2011, that she reviewed the medical reports in the worker’s file. She stated that the modified job duties were suitable. Therefore, the worker was not entitled to loss-of-earnings benefits. In addition, she found that the rotator cuff tear was not caused by the lifting incident on March 31, 2011. In her view, the worker would recover from the right shoulder tendinitis by August 15, 2011, at which point her file would be closed.

[23]                                      Dr. Chan reported the MRI results on September 6, 2007. He went on to say that he was “not hopeful that this is surgically correctable… She is therefore left with a permanent disability with her right shoulder."

[24]                                      On November 29, 2011, Dr. Choe reviewed his notes and stated that the worker had a permanent right shoulder disability and the modified duties offered by the employer were not suitable. He commented, as well:

[25]                                      On November 1, 2012, Dr. Choe reported that the worker was still unable to return to work due to the work-related injury to her right arm and a non-work-related left arm injury.

[26]                                      Another lawyer in the firm with which Ms Ostrowski is associated objected to the Case Manager’s April 21, 2011 and July 28, 2011 decisions on January 3, 2012. He also asked for a decision with respect to the worker’s entitlement to a NEL award. The Case Manager confirmed her previous decisions, on January 18, 2012.

[27]                                      As was noted in section (i), Appeals Resolution Officer DeRose upheld the Case Manager’s decisions in the February 15, 2013 decision.

[28]                                      The worker appealed to the Tribunal.

[29]                                      Since the injury from which this appeal arises happened in 2011, the Workplace Safety and Insurance Act, 1997 (the WSIA) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated.

[30]                                      General entitlement to benefits is governed by section 13:

[31]                                      The statutory provisions relevant to determining loss-of-earnings benefit levels following an appeal are contained in subsections 43(1) to 43(4) and 43(7) of the Act, which are reproduced below.

[32]                                      Section 46(1) of the Act says:

[33]                                      “Impairment” means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss.

[34]                                      “Permanent impairment” means impairment that continues to exist after the worker reaches maximum medical recovery.

[35]                                      The Board also supplied the following policy packages:

[36]                                      I considered the policies as necessary in coming to my conclusions in this appeal.

[37]                                      The worker began her testimony by confirming her age. She stated that she completed Grade 9 in school and became a hairdresser. She did not remember the year in which she began working for the accident employer but said it was about 15 years prior to the hearing. She was a CCA throughout her tenure. Her hours of work were from 11:00 a.m. until 4:30 or 5:00 p.m. She worked five days per week.

[38]                                      The worker stated that the children in the childcare centre were placed in different rooms, depending on their age. The children with whom she worked were from 0 to 17 months old. When she began, they were in two rooms: one for those who could walk and another for those who could only crawl. Later, the children were all placed in one room. Four people, she and three staff members who had early childhood education designations, took care of 10 children.

[39]                                      It was the worker’s evidence that her job duties entailed everything a mother would do for a child. She played with the children, read to them, comforted them, kept them clean, fed them, and put them to bed. She changed diapers every two hours or immediately, if a diaper was dirty. Her job duties were sometimes strenuous. She gave as examples: setting up the playground; taking toys out to the playground and bringing them back when the children came in; and taking children for walks. She did a lot of lifting because the children were all babies. She stated that her duties were repetitive and she had to accommodate the children in every way possible. She commented that some children needed more attention than others and some were more aggressive than others.

[40]                                      The worker testified that her duties remained basically the same throughout her tenure with the accident employer.

[41]                                      It was the worker’s evidence that she is right-handed. She had no shoulder injuries before 2007. She stated that in March 2007, she slipped and fell flat on her back when she was going from the parking lot to her workplace. She hurt her head, shoulder, and back. She had “a big bump on her head” and the employer wanted her to go to the hospital, but she did not. She saw Dr. P. Morar, who was her family physician at the time. As she recalled, she was absent from work for about two weeks and returned to her regular job duties. The worker went on to say that she had “a little pain in her right shoulder” depending on what she was doing, between March 2007 and March 2011. She did not have any other injuries to her right shoulder between 2007 and 2011.

[42]                                      The worker described the happening of the March 31, 2011 injury, as follows. A pair of twins who were 1½ years old had just begun attending the childcare centre. The twins were “very aggressive” little girls. There was a baby who was about seven months old on the floor. At about 11:30 a.m. or 12:00 p.m. one twin tried to bite the baby on her face. The worker “grabbed” the twin and picked her up to remove her from the situation. She estimated that the twin weighed about 24 or 25 pounds. As soon as she picked the child up, she felt a pull in her right arm. The pain seemed to ease off but got worse as the day went on. It continued to get worse after she left work. She applied ice and took Tylenol when she got home. The Tylenol did not help very much so she took Advil, which seemed to calm the pain down. Her arm and shoulder were worse on Sunday. She did not want to go to the hospital because she did not think the injury was terribly serious. She went to work on Monday and explained her worsening condition. Dr. Morar had retired so she consulted Dr. Choe and told him what had happened. Dr. Choe said it could be a muscle strain, in which case she would feel better if she returned to work.

[43]                                      The worker thought that Dr. Choe had Dr. Morar’s records. She commented that she did not tell Dr. Choe about the injury she sustained in 2007.

[44]                                      The worker said that she returned to work after she saw Dr. Choe on April 4, 2011. She could not do much because she could not lift her right arm and had to use her left one. Her supervisor told her to just stay in the room. She did not remember how long she worked that day. She went back to work on Tuesday and the supervisor said to try the toddler’s room, thinking it would be easier for her. There were 18 or 20 children in the toddler’s room. The children were 3 and 4 years old. She and two other adults took care of the children. She found it almost impossible to change children with her left hand. Nor could she put on the children’s coats or do up buttons. The playground materials and toys were heavier than those in the babies’ room. The children were older and stronger than those she was used to caring for. She was afraid and could not function. She told the supervisor and her co-worker that she was struggling and went to see Dr. Choe again.

[45]                                      The worker stated that the supervisor suggested that she go to a different location and work with preschool children. She did, but only stayed one day. She was not sure if she went back the next day. There were 16 or 17 children and one staff member at that location. The staff member was on restricted duty too, so she could not help the worker. The worker said that she could not do much with her arm and was afraid of being bumped. To work with only her left arm was almost impossible. She had to use both hands for everything. She thought that she went back to Dr. Choe again. She also thought that she showed Dr. Choe the employer’s April 6, 2011 offer of modified job duties. Dr. Choe said she could not do them. He prescribed Celebrex and she took Extra Strength Tylenol.

[46]                                      The worker testified that the pain in her arm and shoulder was “excruciating”. She could not do anything because of the pain, which was interfering with her sleep. The employer did not offer her any other modified work. Dr. Choe referred her to Dr. Chan, who sent her for an MRI. The MRI showed that she had a full rotator cuff tear. Dr. Chan said he could not operate and that she could not return to work. Dr. Choe also told her she could not return to work.

[47]                                      It was the worker’s evidence that she continued to see Dr. Choe every week or two, depending on the severity of the pain. She had physiotherapy. She rested. Sometimes she applied ice to her shoulder or put a pillow under her elbow to raise her shoulder a bit.

[48]                                      The worker stated that before the 2007 injury, she did all the cleaning and cooking in her home and she loved to bowl. She had three children and four grandchildren and enjoyed taking care of, and being with them. At the time of the hearing, she could no longer bowl. She could not lift a pot or cut a piece of fruit. Her sister-in-law helps to clean. Her husband is very helpful. She rated the severity of the pain in her arm and shoulder as 6 or 7 out of 10.

[49]                                      The materials indicated that in January 2012, the worker had a problem with her left arm. She explained that her mother was very ill. She slipped and fell, breaking her left arm in three places, when she was giving her mother a glass of water.

[50]                                      Ms Ostrowski pointed out that despite the fact that a significant amount of time had passed, the worker’s testimony before the Appeals Resolution Officer was the same as her testimony before me.

[51]                                      Ms Ostrowski reviewed the employer’s April 11, 2011 offer of modified job duties and a Job Demands Analysis that was contained in the materials. She commented that the job was very physical. It would not have been possible to modify the duties comprehensively because the worker was working with small children. She submitted that, because the worker did not have the use of her arms, she could not have done the job safely.

[52]                                      Ms Ostrowski went through the medical evidence, beginning with Dr. Choe’s April 4, 2011 report. She noted that Dr. Choe described the injury as “work-related” and that he said the worker’s job “involved repetitive lifting of children in a day care centre.” She submitted that these statements indicated that Dr. Choe recognized that the repetitive lifting of children contributed to the right shoulder injury.

[53]                                      Next, Ms Ostrowski reviewed Dr. Choe’s April 11, 2011 report. Dr. Choe stated “[the worker]’s condition is not improving despite modified duties. She is recommended to be off work this week to continue with her treatments.” Ms Ostrowski argued that Dr. Choe’s statements demonstrated that the worker was struggling to perform the modified work.

[54]                                      Ms Ostrowski directed my attention to the MRI report dated June 14, 2011 and Dr. Chan’s September 6, 2011 report. She noted that the MRI revealed a right rotator cuff tear and that Dr. Chan said it was not amenable to surgery. She submitted that the injury was more significant than Dr. Choe had initially diagnosed. The fact that the injury was not correctable indicated that the worker had a permanent disability.

[55]                                      Ms Ostrowski went through a report that Dr. Choe prepared on November 29, 2011. She pointed out that the worker consulted Dr. Choe on April 4, 6, 11, 15, and 27; May 4, 10, 12, and 24; June 21; July 7; August 5; September 22; October 20, and 24; and November 24, 2011. She directed my attention to the following two statements in that report:

[56]                                      Ms Ostrowski submitted that Dr. Choe was saying that it was not the March 31, 2011 incident alone that caused the rotator cuff tear but that repetitive lifting and carrying predisposed the worker to that injury.

[57]                                      Ms Ostrowski commented that in Dr. Choe’s view, the worker’s duties could not be modified because the children needed to be lifted and carried.

[58]                                      Finally, Ms Ostrowski directed my attention to a report that Dr. Choe had prepared on January 25, 2015. In that report, Dr. Choe said the worker had:

[59]                                      Ms Ostrowski submitted that the medical reports were consistent. The worker did not have a previous right shoulder condition. Her repetitive and strenuous work duties predisposed her to the development of a rotator cuff tear. The tear was revealed by the MRI. The tear was caused by her work duties. The worker has a permanent disability.

[60]                                      Ms Ostrowski directed my attention to the following excerpt from a Tribunal Discussion Paper titled “Shoulder Injury and Disability”:

[61]                                      Ms Ostrowski argued that this excerpt described how the worker tore her rotator cuff. Specifically, she was 62 years old and she lifted a child who weighed 24 or 25 pounds. The tear, therefore, was both age and activity related.

[62]                                      Ms Ostrowski concluded that the worker tried the modified job duties but could not perform them. Dr. Choe advised her not to continue and she followed his advice. She submitted that the worker cooperated with return to work activities but was unsuccessful. She was entitled to full loss-of-earnings benefits.

[63]                                      I am troubled by the fact that the initial reporting by the worker and the employer attributed the worker’s right shoulder pain to repetitive lifting. A full two weeks elapsed before the worker stated, on April 14, 2011, that the pain developed when she was lifting an infant up from the floor. The first mention of a lifting incident in the medical reports was a month later, in Dr. Chan’s report dated May 19, 2011. However, since the Board accepted that the shoulder pain developed when the worker was lifting a child, I also accept that accident history for the purposes of this decision.

[64]                                      In the February 15, 2013 decision, Appeals Resolution Officer DeRose stated:

[65]                                      Since the Tribunal takes its jurisdiction from final decisions by the Board, I only have jurisdiction to consider the impact of the March 31, 2011 lifting incident. I do not have jurisdiction to consider whether the worker’s job duties contributed to, or caused the tear.

[66]                                      The worker testified that she had occasional pain in her right shoulder between March 2007 and March 2011. She apparently did not lose any time from work as a result of those shoulder symptoms. She did not receive any treatment and was not taking any medication. Therefore, the Board’s Operational Policy Manual, Document No. 11-01-15, titled “Aggravation Basis” does not apply in this appeal.

[67]                                      The issue before me, then, is whether lifting the infant from the floor on March 31, 2011 caused the rotator cuff tear in the worker’s right shoulder.

[68]                                      The worker was 62 years old when she sustained the injury from which this appeal arises. There were, therefore, age-related changes in her shoulder. In addition, as was noted in section (iii), the worker received a 6% NEL award for the residual permanent impairment in her shoulder following the March 5, 2007 injury.

[69]                                      As would be expected, the x-ray that was done on April 13, 2011, showed osteoarthritis in the worker’s right shoulder. Given the worker’s age, her previous right shoulder injury, and the fact that this x-ray was two weeks after the March 31, 2011 incident, I find that the lifting incident did not cause the osteoarthritis.

[70]                                      The June 14, 2011 MRI report said:

[71]                                      This report clearly revealed a longstanding degenerative condition.

[72]                                      Dr. Chan, in his September 6, 2011 report and Dr. Choe in his reports said that the rotator cuff tear resulted in a permanent disability. The issue then, is whether there is a relationship between the lifting incident of March 31, 2011, and the rotator cuff tear.

[73]                                      Dr. Choe, in his November 29, 2011 report said that the lifting incident was “relatively minor” and was “the proverbial straw that broke the camel’s back.” He stated that the worker’s job duties caused a chronic shoulder problem. I accept Dr. Choe’s opinion that the worker’s chronic shoulder problem resulted from her job duties.

[74]                                      Despite the residual permanent impairment in the worker’s neck and right shoulder/arm after the March 5, 2007 injury, the worker performed her regular job duties for a full three years. It was not until the March 31, 2011 lifting incident that she was unable to continue. In the circumstances of this case, I find that it is more likely than not that the rotator cuff tear resulted from the lifting incident, superimposed on the worker’s chronic weakened right shoulder. The worker is entitlement to a NEL award for the residual permanent impairment in her right shoulder.

[75]                                      I set out, in section (iii), the shoulder restrictions considered by the employer in its offer of modified job duties. Those restrictions were essentially the same as those Dr. Choe and the physiotherapist recommended in their early reports.

[76]                                      The employer’s written offer of modified duties was dated April 6, 2011. The work was to be with school-aged, kindergarten, and preschool children (no infants or toddlers). The offer said that the worker would be expected to take the children to the washroom but would not lift any of the children. She might assist with dressing and undressing. She would oversee dressing, undressing, and hand-washing in older children. She would interact with the children during songs, reading, games and storytelling. She would escort children to the playground and monitor outside activities. She would also monitor children who were resting. She was instructed to sit on a chair and allow a child to come to her for comforting. She could allow a child to sit on her lap but she was not to pick one up. At lunch and snack time, the worker was to organize the tables so that the children could help themselves and she did not have to do any serving. She was to ask for assistance as needed. The offer letter said:

[77]                                      Although the offered job duties appear on paper to be suitable, I find that they were not. It is unrealistic to think that a person could care for small children without using her dominant hand. Further, it was expected that the worker would return to her regular job duties at some point. Given the nature of the worker’s injury, she could not have done so.

[78]                                      In section (vi), above, I recorded that Ms Ostrowski listed the dates on which the worker consulted Dr. Choe. It can be seen that she required intensive medical care after performing the modified duties on April 5, 6, 7, and 8, 2011.

[79]                                      The worker made it clear in her conversations with the Case Manager that she did not feel capable of working (cf the Case Manager’s memorandum dated April 21, 2011). When she testified at the hearing before me, she said the pain was excruciating; she could not function; she could not do much with her right arm and used both hands for everything.

[80]                                      The worker testified that Dr. Choe and Dr. Chan told her she was not able to return to work. Dr. Choe provided reports that said he supported the worker’s absence. Dr. Chan did not.

[81]                                      Based on the evidence before me, I find that the offered job duties were not suitable.

[82]                                      Although Dr. Choe initially diagnosed a right shoulder strain/tendinitis, the MRI revealed that the worker had a rotator cuff tear. It will be recalled that the Case Manager did not allow loss-of-earnings benefits beyond August 15, 2011, because the worker ought to have recovered from the shoulder strain by then. When the Case Manager made that decision (July 28, 2011), she was aware that the MRI showed the rotator cuff tear. She denied loss-of-earnings benefits because there was no relationship between the rotator cuff tear and the accident history i.e., lifting a small child.

[83]                                      I found in the sections above that the rotator cuff tear likely resulted from the March 31, 2011 lifting incident and that the modified job duties offered by the employer were not suitable.

[84]                                      The worker’s loss of earnings after April 8, 2011 was as a result of her compensable injury.

[85]                                      The worker’s appeal is allowed.

[86]                                      The worker is entitled to a NEL award for the residual permanent impairment in her right shoulder.

[87]                                      The modified job duties offered by the employer were not suitable.

[88]                                      The worker is entitled to loss-of-earnings benefits after April 8, 2011.

[89]                                      I remit to the Board the determination of the benefits that flow from this decision, subject to the usual rights of appeal.