WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 432/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 432/14 BEFORE: S. J. Sutherland : Vice-Chair A.D.G. Purdy : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: March 5, 2014 at Kitchener Oral DATE OF DECISION: March 12, 2014 NEUTRAL CITATION: 2014 ONWSIAT 523 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated February 1, 2012 APPEARANCES: For the worker: For the employer: Interpreter: J. Ford, the worker s union representative The employer did not take part in the proceedings N/A 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. 432/14 REASONS (i) Introduction to the appeal proceedings [1] The worker appealed from the decision of the Appeals Resolution Officer, C. Ihasz, dated February 1, In that decision, the Appeals Resolution Officer concluded that there was insufficient evidence on which she could find that the torn supraspinatus tendon in the worker s right shoulder resulted from his job duties. The Appeals Resolution Officer denied the worker initial entitlement to benefits for that condition. [2] The Appeals Resolution Officer s decision followed an oral hearing. (ii) Issues [3] The worker is seeking initial entitlement to benefits for his right shoulder injury. (iii) Background [4] The following are the basic facts. [5] The employer is a multinational corporation with a number of divisions. [6] The now 54-year-old worker began working for the accident employer in its meat processing division in November He described the onset of his shoulder injury in his Report of Injury, which was dated October 24, 2009: I ve been experiencing regular pain in my right arm and shoulder for 2 2 ½ years, since Jun Jul I now work on the Millwright Mechanic position, so it is obvious that I had hurt myself 2 years ago, when I worked as a meat cutter. It was difficult, fast, repetitive job, required cutting large piece of meat. I had to cut off a big piece of ribs from the cattle s carcass - the entire piece was equal to about 1/8 th of the whole carcass. The job required to cut through the bone each time, which is extremely labour intensive. I thought the cause of my pain was arthritis, because that is what my doctor told me. The symptoms pointed at arthritis - pain worsened in wet-cold weather. It became worse in 2009, so in Aug 2009 my family doctor sent me for an x-ray and ultrasound. On Sept 22, I was told that my pain is caused by a torn muscle in my shoulder. [7] The worker s family physician, Dr. A. Kizior-Hajduk, submitted a Health Professional s Report on October 16, In that report, Dr. Kizior-Hajduk commented: Pain in right shoulder since June/07, most likely due to repetitive movement when worked as a meat cutter. Dr. Kizior-Hajduk diagnosed a full thickness right supraspinatus tendon tear. She prescribed physiotherapy, non-steroidal anti-inflammatory medication, and possible referral to an orthopedic surgeon. She did not recommend any limitations because she said the worker was tolerating his current work well. [8] The Eligibility Adjudicator recorded, on November 30, 2009, that he was unable to relate this worker s right shoulder activity [sic] to the work performed up to September 2008 as there was no medical attention and no continuity of complaint. The worker objected to that decision on December 18, [9] As was noted in section (i), the Appeals Resolution Officer upheld the Eligibility Adjudicator s decision in her decision dated February 1, [10] The worker appealed to the Tribunal.

3 Page: 2 Decision No. 432/14 (iv) Law and policy [11] Since the worker first reported the injury in 2009, 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. [12] The following sections of the WSIA are relevant: 2. (1) In this Act, accident includes, (a) (b) (c) a wilful and intentional act, not being the act of the worker, a chance event occasioned by a physical or natural cause, and disablement arising out of and in the course of employment; ( accident ) (1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. Presumptions (2) If the accident arises out of the worker s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker s employment, it is presumed to have arisen out of the employment unless the contrary is shown. [13] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #8, apply to the subject matter of this appeal: Package #1 - Initial Entitlement Package #300 - Decision Making/Benefit of Doubt/Merits and Justice [14] The Panel considered these policies as necessary in deciding the issues in this appeal. (v) The worker's testimony [15] The worker described his job duties as follows. There is a railing attached to the ceiling in the meat-processing plant where he was employed. Other workers cut cattle carcasses in half, down the centre, and hung the sides of beef on hooks that fit into wheels that ran at a constant speed on the railing. The hooks were free spinning. The carcasses always came from the left to the right. He used his left hand to steady each carcass. His job was to cut away ¼ of the half carcass. He used his right hand to cut the carcass, from back to front at the fifth rib. He then had to cut through cartilage, which was quite easy when the cattle were young but after they were about two years old, became more difficult. He used a knife with a 10-inch blade to make the cuts. If he could not cut through the cartilage with his knife, he stopped the line and used a saw that hung on a hook beside him to make the cut. [16] The worker testified that the conveyor onto which the cut portion fell was on his right side and came to about his mid-thigh. The 1/8 th carcass dropped to the conveyor after he made the cut. He had to time the cut carefully because if he cut too early, the meat would fall onto the floor. [17] The worker also described the motions required to make the cuts. More specifically, he said that his arm rotated out at about shoulder height and his hand was far away from his body when he was cutting. The cutting motion was usually between the worker s chest and chin but

4 Page: 3 Decision No. 432/14 some cuts were lower and some were higher. The carcasses were about three feet apart. He followed the carcasses and cut one from left to right, the next from right to left. When he was injured in 2007, he was making a cut every seven seconds or about 485 cuts per hour. This was an increased amount of work. He had been working the afternoon shift and cut 200 carcasses per hour. The employer eliminated the afternoon shift a month or so before he first developed the shoulder pain. He was moved to the day shift. [18] The worker confirmed that he did not go to a doctor immediately when his shoulder pain developed. He explained that he had been diagnosed with arthritis some 10 or 15 years earlier and was taking over-the-counter medication for that condition. When his shoulder started to hurt, he thought it was his arthritis and fatigue. He saw his family doctor in August 2007 and began chiropractic treatment for his shoulder in September Dr. Kizior-Hajduk also sent him to a neurologist, because he had severe headaches. The neurologist told him that the bone in his neck was squeezing the blood vessels, which was causing his headaches and referred pain to the shoulder. [19] The worker acknowledged that he did not have any proof of treatment by the neurologist but said that he had proof that she prescribed medication on February 22, April 18, May 21, August 27, and October 31, 2008; and January 6, [20] It was the worker s evidence that his arthritis was not severe and only affected him from time to time. He did not have to make any modification in his job duties because of the arthritis. The treatment by the chiropractor and the neurologist did not improve his shoulder pain. [21] The worker stated that he was going to school twice a week, for three hours, in the summer of 2007, to obtain a licence as an industrial mechanic/millwright. He took the government examinations in November 2007, passed and got his licence. He applied for a maintenance job with the employer and got one two months later. He started on January 10, The job was easier but his shoulder pain continued, although it was less severe than when he was cutting meat. He then went back to Dr. Kizior-Hajduk, who sent him for an x- ray and ultrasound. These investigations showed that he had a torn muscle in his shoulder. He recalled seeing an orthopedic surgeon but could not remember his name. The orthopedic surgeon said he could operate but the scar might be worse than the torn muscle. [22] The worker testified that he was not involved in any motor vehicle accidents between 2007 and He did not play any sports. He did not have any hobbies or injuries outside of work. The only physical activity in which he engaged was the meat-cutting job. (vi) Analysis [23] The Panel has set out above, in some detail, the worker s description of his job duties. We accept his testimony that the job was highly repetitive and required forceful movements of his right arm. We note also, the awkward position of his arm while performing those movements and the increase in his workload shortly before the pain developed. [24] The documentary evidence before the Panel shows that the worker first had chiropractic treatment from Dr. P. Nolet on August 29, He had eight treatments in September 2007, seven in February 2009 and four in March 2009, at which point Dr. Nolet s Statements of Account ended.

5 Page: 4 Decision No. 432/14 [25] The documentary evidence also confirmed that the worker filled prescriptions given by Dr. P. Mandalfino, who is a neurologist, on the dates to which he testified. The medications that Dr. Mandalfino prescribed were Topiramate, Zolmitriptan (both used to treat migraine headaches), and Gabapentin (used in the treatment of neuropathic pain). [26] When she made her final submissions, Ms Ford suggested that there had been a misdiagnosis of the worker s condition. She went on to say that since an x-ray of the worker s cervical spine that was done on February 27, 2009, showed early degenerative changes at several levels, the worker s treating healthcare practitioners assumed that was the cause of his headaches and the pain in his right shoulder. The evidence before us, while minimal, supports that interpretation. [27] In their decisions, the Case Manager and the Appeals Resolution Officer stated that the worker did not have any medical attention prior to June 11, The documentary evidence before this Panel does not support that conclusion. [28] The worker testified that neither the treatment provided by the chiropractor nor the treatment given by the neurologist improved his shoulder pain. It was for that reason that he sought further medical attention. [29] Dr. Kizior-Hajduk s clinical note dated June 11, 2009, said that the worker had right shoulder and arm pain NYD [not yet diagnosed] that had been present on and off x 2 years, hx [history] of repetitive movement of right shoulder. She ordered the x-ray and ultrasound, which revealed a full thickness tear of the worker s right supraspinatus tendon. That diagnosis was made on September 22, [30] As was noted in section (iii), Dr. Kizior-Hajduk said, in her Health Professional s Report dated October 16, 2009, that the pain had been present since June 2007 and the tear was likely caused by the worker s job duties as a meat cutter. [31] Given the background history of arthritis and the fact that the correct diagnosis was not reached until September 22, 2009, the Panel members find that the worker s reporting of the injury to the employer on October 6, 2009 was not unreasonable. [32] The materials contained a copy of the Tribunal s discussion paper titled Shoulder Injury and Disability. The Panel found the following excerpt particularly helpful. As stated above, in middle-aged or older people, changes inside the tendon (degenerative changes) make the tendon weaker to a point where the tear may occur spontaneously with no trauma or with trivial trauma. In this instance we are dealing with a chronic tear, a disorder. Work requiring repetitive or prolonged use of arms above the shoulder level (either flexion or abduction) may accelerate the progress of degenerative tendinitis and thus, may predispose to tears (work-related). Small tears may not cause any symptoms. Bigger tears cause a weakness and usually cause pain, mostly on abduction. The symptoms are usually made worse when attempting to lift the arm away from the body and the weakness is felt when performing activities with the arm at shoulder level or above it. [33] This worker was 48 years old in As the Panel accepted above, his work was repetitive, heavy and was done with his arms extended at shoulder level. Further, his workload more than doubled in the months before his shoulder became painful.

6 Page: 5 Decision No. 432/14 [34] Taking all the evidence before us into account, the Panel members find that it is more likely than not that there was a causal relationship between the worker s job duties as a meat cutter and the full thickness tear in his right rotator cuff that was diagnosed in September 2010.

7 Page: 6 Decision No. 432/14 DISPOSITION [35] The worker s appeal is allowed. [36] The worker is entitled to benefits for the injury to his right shoulder. [37] The Panel remits to the Board the determination of the nature and duration of the benefits that flow from this decision, subject to the usual rights of appeal. DATED: March 12, 2014 SIGNED: S. J. Sutherland, A.D.G. Purdy, M. Ferrari