WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 704/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 704/16 BEFORE: M. Crystal : Vice-Chair J. Blogg : Member Representative of Employers C. Salama : Member Representative of Workers HEARING: March 18, 2016 at Toronto Oral DATE OF DECISION: March 30, 2016 NEUTRAL CITATION: 2016 ONWSIAT 830 DECISION UNDER APPEAL: WSIB ARO decision dated October 7, 2013 APPEARANCES: For the worker: For the employer: Interpreter: Mr. K. Munn, Office of the Worker Adviser Did not participate Mr. J. Comrie, Spanish 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. 704/16 REASONS (i) Introduction [1] This appeal was heard in Toronto, on March 18, The worker appeals the decision of Appeals Resolution Officer (ARO) M. Kalbfleisch, dated October 7, That decision determined that the worker does not have ongoing entitlement for a right shoulder injury, including entitlement for a full thickness rotator cuff tear and surgical repair, arising from a work accident on or about September 14, [2] The worker appeared and was represented by Mr. Kier Munn, Office of the Worker Adviser. The employer did not participate in the appeal. The worker testified at the appeal hearing. Submissions were provided by Mr. Munn. Mr. Jorge Comrie served as an interpreter of the Spanish language. (ii) A synopsis of the case under appeal [3] The worker claims that he sustained an injury to his right shoulder, including a full thickness tear of the right rotator cuff, on a disablement or gradual onset basis as a result of his employment with the accident employer, a poultry processor. The worker testified that he began his employment with the accident employer in June 2006 processing turkeys, cutting them into parts and packaging them. The worker indicated that this job also included cleaning up garbage in the work area. [4] The worker stated that he performed the turkey processing job during the initial three months of his employment, while he was a probationary employee, but that after the initial three month period, his position changed to processing live hens. He stated that in this work, he worked with a team of about eleven or twelve co-workers. He testified that two people on the team performed the job of moving baskets of live hens from a truck, and that the job of the other members of the team was to hang the live hens on a moving line. He stated that the two people who were removing the baskets of live hens from the truck would perform this work for about two hours of the eight hour shift, after which they would return to the job of hanging the chickens on the line, and that the job of removing the baskets was rotated through the team. He noted that no one performed the job of removing the baskets from the truck more than once per shift, and that on some shifts, a member of the team might not perform this job at all, if his turn in the rotation did not come up that shift. [5] The worker stated that of the two employees who were removing the baskets from the truck, one of them moved the baskets, which were stacked six baskets high, to the end of the truck for offloading by the other. He testified that one employee moved the baskets for offloading while the other did the offloading, for one hour each, after which they switched jobs with each other for the other hour. The worker indicated that the employee who performed the offloading took the baskets off the truck one at a time and placed the baskets on a platform. He stated that another member of the team took the baskets from the platform to a conveyor line and opened the door to the basket. As the basket moved along the conveyor line, the other members of the team grabbed a hen from the basket by a leg, and hung the hen from its legs on the moving line above the conveyor line. He stated that the line of live hanging hens carried them to a machine where they were slaughtered. The worker testified that the line carrying the hanging

3 Page: 2 Decision No. 704/16 live hens moved quickly and that the members of the team who were hanging the hens were required to hang a bird once every few seconds. [6] The worker testified that he began to experience pain in his right shoulder after performing this work. He indicated that he experienced right shoulder pain on about three occasions after he started performing the work, and that he did not report the shoulder pain to his employer, but on the fourth occasion, the pain was too severe for him to continue working and he reported his pain to his supervisor and saw the company nurse. He stated that on the fourth occasion, when he reported his shoulder pain, he also fell on a barrier and hit his shoulder, and that this added to his right shoulder pain on that occasion. [7] The worker stated that his supervisor provided him with forms to complete in order to provide the worker with a lighter job, and that he subsequently switched to a different job. He stated that his next job was rehanging slaughtered birds that had fallen off a line, but that this job was not suitable for his shoulder injury, and he was moved to a different job, where he removed chicken livers from the birds. He stated that he did this job for about two months, after which he returned to rehanging slaughtered birds. He stated that he remained performing this work until his employment was terminated on March 31, He stated that he had been harassed by two co-workers over a period of time, that he got into a fight with one of them, and his employment was terminated as a result. [8] The case materials did not include a Worker s Report of Injury (Form 6). The worker was questioned about this at the hearing and stated that he completed and returned the forms that were provided to him in relation to his injury. The case materials included an Employer s Report of Injury (Form 7), however, and it indicated that the worker sustained an injury to his right shoulder, which occurred gradually over time, and was first reported to the employer on September 14, The Form 7 also stated, however, that the worker complained of right shoulder pain on June 14, 2007, and that modified duties were assigned to him at that time. The Form 7 also stated that no specific accident but employee feels it is from pulling crates off the truck. The Form 7 also stated that on June 19/07 employee advised us that he saw his doctor regarding the mid back and right shoulder discomfort. [9] The case materials also included a letter, dated March 1, 2011, from the employer s health and safety manager to the Board, which stated that after his injury on June 17/07 he was transferred to the Evisceration department where he did the Harvesting Liver jobs. [10] The case materials indicate that the worker saw Dr. N. Fernandez, his family physician, on June 17, An entry in clinical notes made by Dr. Fernandez on that date stated that the worker had right shoulder pain stiffness and that x-rays showed degenerative changes in the right humeral head which were consistent with rotator cuff degeneration. The entry provided a diagnosis of right rotator cuff tendonitis. The worker saw Dr. Fernandez on a few further occasions in 2007 and 2008, and Dr. Fernandez ordered an ultrasound examination of the right shoulder, which was carried out on October 21, The report on the ultrasound disclosed that the worker had a partial thickness intrasubstance tear of the supraspinatus. In an entry in clinical notes for January 17, 2009, Dr. Fernandez provided a diagnosis of right rotator cuff tendonitis with tendon tear and indicated that the worker had been referred to Dr. P. Kirwin, physiatrist, for further treatment. [11] The worker saw Dr. Kirwin on February 26, His report stated that the worker presents with complaints of right shoulder pain due to multiple work injuries at the [accident

4 Page: 3 Decision No. 704/16 employer s] chicken factory two years ago, in particular three or four heavy lifting and pushing injuries three of four years ago. The report indicated that the worker appeared to be suffering from a right rotator cuff tendinosis and that a course of physiotherapy was prescribed for him. [12] Throughout 2009, the worker continued to see Dr. Fernandez and Dr. Kirwin concerning his right shoulder pain. A report from Dr. Kirwin, dated December 18, 2009 stated that the right shoulder pain and the rest of his complaints are no longer an issue, however a later report from Dr. Kirwin, dated July 12, 2010 stated that the worker appears to be suffering from a right rotator cuff tendinosis with a right upper trapezius myofascial strain. In the interim, a further ultrasound examination carried out on May 28, 2010, stated that the worker had a full thickness tear supraspinatus. An MRI carried out on August 15, 2010, ordered by Dr. Kirwin confirmed this diagnosis. [13] The worker was referred to Dr. S. I. Halman, orthopaedic surgeon, who saw the worker on October 27, His report stated that it was Dr. Halman s impression that the worker had a full thickness rotator cuff tear which remained symptomatic and that he was an appropriate person to consider arthroscopic rotator cuff repair. The surgery was scheduled, and was subsequently performed by Dr. Halman on January 21, [14] At the hearing, the worker testified that after he was terminated from his employment, in March 2010, he collected employment insurance (EI), and that for a period of time he collected EI on the basis of his disability related to his right shoulder impairment. He stated that he subsequently obtained employment in late 2011 as an order picker, and that he had maintained this employment as of the date of the appeal hearing. At the hearing he stated that he continues to experience right shoulder pain. (iii) Applicable law [15] The workplace accident which is the subject of this appeal occurred on a gradual onset or disablement basis, with an accident date established on or about September 14, Accordingly, the worker s entitlement to benefits in this appeal is governed by the Workplace Safety and Insurance Act, (iv) The issue under appeal [16] The sole issue to be determined in this appeal is whether the worker has ongoing entitlement for a right shoulder injury, including entitlement for a full thickness rotator cuff tear and surgical repair, alleged to have resulted from the worker s gradual onset work injury. (v) Analysis [17] In this case, the worker alleges that he injured his shoulder performing heavy lifting of baskets or crates containing live chickens, and hanging live chickens on a fast moving line. The weight of the baskets is not explicitly stated in the case materials, although we note that the physical demands analysis for this work, that was included in the materials, indicated that the chickens typically weighed 2.4 kg each (slightly more than five lb.), and we accept the worker s testimony that each basket contained twelve to fourteen chickens. We estimate that the empty baskets probably weighed at least five lb. each. Accordingly, we conclude that each basket of chickens weighed between 65 and 75 lb. We also note that the work of hanging the five lb. chickens was fast paced and highly repetitive. Accordingly, we conclude that the worker s job,

5 Page: 4 Decision No. 704/16 which included repetitively lifting and moving the baskets of chickens from the trucks and also hanging the chickens, is compatible with his right shoulder injury. We note that the Board allowed initial entitlement for the worker s right shoulder injury, and the fact that the worker s job in 2007 made a significant contribution to his initial injury is not contentious. [18] As noted above, there is no Form 6 on file, and the Form 7 indicated that the worker reported his shoulder injury and sought first attention for the problem in June 2007, although the Form 7 also stated that the worker first reported his injury in September At the hearing the worker reported that he experienced shoulder pain on about three occasions before he reported the problem to the employer. From the evidence, it appears to us that this occurred in June Since by all accounts, the injury occurred with a gradual onset of symptoms, the question of whether the worker first reported the injury in June or September 2007 would not affect entitlement. [19] We note that the worker had an ultrasound examination of the right shoulder in October 2008 which disclosed that the worker had developed a partial thickness tear of his right rotator cuff at that time. Based on the accident history, and the heavy and repetitive nature of the work that the worker was performing in 2006 and 2007, we are satisfied that the worker s repetitive duties in 2006 and 2007 made a significant contribution to the development of the partial rotator cuff tear. [20] The worker went on to develop a full thickness tear of the right rotator cuff that was disclosed by his ultrasound examination on May 25, 2010, and confirmed on MRI on August 15, We note that the worker was performing repetitive work, using his arms to hang chickens, until his employment was terminated on March 31, At the hearing, the worker s representative provided the Panel with a medical journal article, entitled Management of degenerative rotator cuff tears: a review and treatment strategy, authored by Nicholas D. Clement, Yuan X. Nie and Julie M. McBirnie. The article was published in the journal Sports Medicine, Arthroscopy, Rehabilitation, Therapy & Technology, 2012, 4:48. The article referred to a 1994 study by K. Yamanaka and T. Matsumoto, published in the journal Clinical Orthopaedics and Related Research 304:68-73, noting: Yamanaka et al. demonstrated that 10% of partial-thickness tears heal and 10% become smaller, but 53% of tears will propagate and 28% progress to full-thickness tears. [21] Taking this information into account, and considering the fact that the worker continued to perform work using his arms to hang chickens until March 2010, we find, on a balance of probabilities that the worker s job duties with the accident employer made a significant contribution to the full thickness rotator cuff tear that was apparent on ultrasound and MRI in Given that the Board allowed initial entitlement for the worker s initial right shoulder injury, which involved a partial thickness tear, in our view, it is probable that his full-thickness rotator cuff tear was also work related, and that he is entitled to benefits for the full thickness tear and the subsequent surgical repair required by that condition. [22] The Board s operating level decision, dated July 28, 2010, denied ongoing entitlement for the worker s right shoulder condition for three reasons. The decision stated that there were gaps in seeking medical attention from 2007 to 2009, and from 2009 until you were terminated on March 31, The decision also attributed weight to the fact that the worker sustained a right shoulder injury as a result of an incident at home on May 10, Finally the decision stated that the post operation diagnosis of a full thickness rotator cuff tear is not compatible with the

6 Page: 5 Decision No. 704/16 original onset that took place on September 14, The ARO decision confirmed the operating level decision, focusing primarily on the incident alleged to have occurred in May 2010 as being responsible for the worker s full thickness rotator cuff tear. [23] First, we do not agree that there are significant gaps in the medical reporting relating to the worker s right shoulder injury. We note that the worker saw Dr. Fernandez about his right shoulder condition on visits on June 12, 2007, September 24, 2007, March 8, 2008, October 11, 2008, January 17, 2009, February 28, 2009, April 11, 2009, August 11, 2009, and December 12, He saw Dr. Kirwin about his shoulder problem on February 26, 2009, May 26, 2009, and December 18, At the December 2009 visit with Dr. Kirwin, the worker s shoulder pain had improved, however, the shoulder pain worsened and the ultrasound examination on May 28, 2010 indicated the full-thickness tear of the right rotator cuff. [24] In our view, the medical information on file indicates that the worker sought medical treatment for his right shoulder condition on a relatively continuous basis from June 2007, when he first sought treatment for the problem, until May 2010, when the full-thickness tear was disclosed on ultrasound examination. We also note that the worker had other pressing medical issues during this period, which included diabetes and low back pain, and that on medical visits during this period with Dr. Fernandez, these problems, rather than the right shoulder, were the focus of treatment. We are satisfied that medical documentation demonstrates reasonably strong continuity of treatment for the worker s right shoulder between 2007 and [25] We have also considered information that was included in the report, dated March 24, 2011, prepared by the Board s investigator, which referred to an incident alleged to have occurred in May The report stated that the worker described the incident, as follows: In May 2010, at home working in his backyard, clearing old lumber, lifting a pile approximately 10 pounds, he did hear a cracking sound come from his right shoulder. No new injury occurred. He was experiencing ongoing problems since His ongoing condition and exacerbation was reported to Dr. Fernandez, Dr. Kirwin and Dr. Halman. [26] At the hearing, the worker denied having told the Board s investigator about an incident in May He noted that his English was very poor at the time, and that he met with the investigator alone, without an interpreter. The worker testified that the incident described by the investigator was implausible, because in May 2010, he lived in an apartment which did not include a backyard. We also note that the investigator s report referred to the worker telling his physicians about his ongoing condition and exacerbation, but that none of his physicians reports refer to such an incident. [27] We have also considered an emergency room report, dated May 10, 2010, that was included in the case materials, which indicated that the worker had sustained [right] shoulder trauma as a result of an incident 15 days earlier when the worker was trying to carry a 15 kg object. The worker testified, again, that he did not have an interpreter in the emergency room, and he denied stating at the emergency room that he had sustained a new trauma to his shoulder in May He stated that he went to the emergency because his shoulder pain had worsened spontaneously. [28] We accept the worker s testimony that there was no new traumatic incident in May 2010, which significantly affected his right shoulder condition. We have reached this conclusion noting that the medical information prepared by Dr. Fernandez and Dr. Kirwin does not refer to such an incident, and it is unlikely that he would tell the Board s investigator about such an

7 Page: 6 Decision No. 704/16 incident, but that he would not tell his physicians. We also accept the worker s testimony that, in 2010, his English was very poor and he had difficulty making himself understood. In any event, however, we conclude that even if an incident occurred in or about May 2010 which affected the right shoulder, prior to that time, there was already significant medical information describing the worker s right shoulder injury, and that the worker had at least a partial thickness tear of the rotator cuff well before May [29] As for the Board s view that the worker s accident history was not compatible with his full thickness rotator cuff tear, we have provided our reasons for concluding that the worker s job duties in 2006 and 2007, which included repetitive heavy lifting, are compatible with his injury. We note that the Tribunal s Medical Discussion Paper on Shoulder Injury and Disability prepared in October 2010 for the Tribunal by Dr. Hans K. Uhthoff, orthopaedic surgeon. The paper states, in part: Rotator cuff tendons may tear in response to a severe injury where the external force is greater than the strength of a healthy tendon (young individuals). In this instance, a piece of bone is often avulsed (torn away by force) from the greater tuberosity of the humeral head together with the tendon. The greater and the lesser tuberosities are bony prominences of the humeral head; they are situated outside the glenohumeral joint (extraarticular). In the more common type of rotator cuff tear, the tearing occurs in older individuals with a moderate external force, such as during the lifting of objects. It causes a tear of a cuff tendon close to its insertion into bone. This site has been weakened by age-related, and maybe by activity-related, changes (middle aged and older persons), already present at the time of the incident [30] We note that in 2007, the worker was 42 years old, and we find that it is probable that he sustained a partial-thickness rotator cuff tear as a result of his job duties in 2006 and 2007 which involved repetitive lifting. We also find that it is probable that the problem went on to develop into a full-thickness rotator cuff tear, which required surgical repair. [31] We find that the worker is entitled to benefits for his right shoulder injury, including entitlement for a full thickness rotator cuff tear, and the subsequent surgical repair. The Board shall determine the nature and extent of the worker's entitlement to benefits.

8 Page: 7 Decision No. 704/16 DISPOSITION [32] The appeal is allowed. 1. The worker is entitled to benefits for his right shoulder injury, including entitlement for a full thickness rotator cuff tear, and the subsequent surgical repair. 2. The Board shall determine the nature and extent of the worker s entitlement to benefits. DATED: March 30, 2016 SIGNED: M. Crystal, J. Blogg, C. Salama