Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20190086
Objecting Party: Worker
Represented by: Worker Representative
Respondent: Worker (Owner/Operator)
Hearing: Hearing in Writing
Heard by: D. Gowanlock, Appeals Resolution Officer
Dated: June 25, 2019
ISSUE
The worker is objecting to Eligibility Adjudicator decisions dated May 31, 2016 and November 2, 2018 denying initial entitlement for a right shoulder rotator cuff tear.
BACKGROUND
According to the Employer’s Report of Injury – Form 7 the worker is an owner/operator and started working as a Butcher/Meat Cutter in May of 1997. In March of 2016 the worker established a claim for the right shoulder. Under additional information the worker noted that he lifts boxes that weight 50-70 pounds, he debones beef fronts, pork shoulders, hams and loins. He cuts on a band saw, makes sausages and lifts and cooks lamb and barbecues pigs that weight 20-55 pounds.
According to the Worker’s Report of Injury - Form 6 the worker is right handed and notes an onset of symptoms about three to four years earlier.
In April of 2016 the Eligibility Adjudicator wrote to the worker denying initial entitlement as medical reporting remained outstanding.
In May of 2016 the Eligibility Adjudicator reviewed the details of the case which included newly received medical reporting and determined that initial entitlement remained denied, as the worker’s job duties are routine and are not highly repetitive or forceful and not at or above shoulder height.
In October of 2018 the worker representative wrote to WSIB requesting a reconsideration referencing the May 9, 2018 report from the Occupational Health Clinic for Ontario Worker’s (OHCOW).
On November 2, 2018 the Eligibility Adjudicator wrote to the worker representative confirming that after reconsideration, initial entitlement continued to remain denied.
Worker Position
The worker objects to the May 31, 2016 and the November 2, 2016 decisions. The worker representative provided an Appeal Readiness Form and included a submission dated January 18, 2019. The previous submission dated October 31, 2018 was noted.
AUTHORITY
The following operational policy applies:
11-01-01 Adjudicative Process
ANALYSIS
In my review I have had regard for the case file information, relevant policy, legislation and the submissions put forth by the worker representative with respect to the issue. I have considered all the evidence and the following is a summary of my decision.
Issue: Initial entitlement for a right shoulder rotator cuff tear
I find that the criteria required allowing initial entitlement for a right shoulder rotator cuff tear injury has been met. I arrived at this decision based on the following:
Policy
Policy 11-01-01 Adjudicative Process sets out what is necessary for a worker to establish initial entitlement to benefits. The policy states that all decision-makers use the same criteria for ruling on initial entitlement to benefits, namely, the “five point check system”. An allowable claim must have, among other things, a personal work-related injury, proof of accident and compatibility of the diagnosis to the accident or disablement history.
Case Details
Memorandum #1 dated March 31, 2016 documents a conversation with the worker. He confirmed that he is the owner/operator of the business and that he purchased the business 21 years ago. It is a small business that he operates with his wife and one employee. He works as a butcher and he also cooks lamb and pigs that weigh 20-55 pounds. He lifts heavy boxes of meat, 50 to 70 pounds. He also does cleaning. He saw his physician in approximately July of 2015 and started having problems 3 to 4 years ago. He was unable to extend his arm forward without pain and decided to see his family doctor. He relates the onset of his injury to his general job duties. He underwent a rotator cuff repair in February of 2016 and returned to work to light duties.
In November of 2016 the worker provided a description of the work that he performs. In terms of the tasks, he will bone out and trim, cut chops on a band saw, treat and cut for pork cutlets, grind, spice, mix, stuff and twist by hand, cut and package. In terms of the meat received in 2015, the worker indicates that he received approximately 32,020 pounds for the year which over 52 weeks and an average of 5 working days a week, has the worker lifting and working with 123 pounds per day. In terms of total production of product, the worker handles 22,187 pounds per year which over 52 weeks and an average of 5 working days a week, has the worker handling an additional 85 pounds a day for a total of 208 pounds of meat on average per day. He explains that he needs to bone out, trim, separate, cut using a band saw, grind, spice, mix, stuff, pump out of stuffer, twist by hand, cut, package and roast.
In terms of the medical evidence on the case record I found the following to be significant:
The right shoulder ultrasound dated March 13, 2009 was ordered due to persistent and chronic shoulder pain. There appeared to be a full thickness tear of the supraspinatus tendon.
There is no other medical to support reporting of a right shoulder injury in 2009. The next reference to the right shoulder is the clinical note dated August 24, 2015 which notes that both of the worker’s shoulders were bothering him.
The clinical note dated September 21, 2015 notes that the worker had difficulty elevating his shoulders for years. He felt weakness and some pain. The worker did repetitive box lifting at work.
Ultrasound investigation of the right shoulder on September 28, 2015 found a full thickness tear of the supraspinatus.
On October 19, 2015 the worker was assessed by a surgeon who notes that the worker was seen in 2009 at which time the worker was noted to have a rotator cuff tear. At the time he declined surgery and continued with conservative treatment. The worker did not participate in any form of treatment. He returned due to progressive right shoulder pain. The worker continued to work as a butcher managing every day with right shoulder pain. Given that the tendon tear would not resolve on its’ own, the worker was now agreeable to surgery.
On February 2, 2016 the worker underwent surgery for a right rotator cuff tendon tear.
On April 1, 2016 the worker’s physician wrote to WSIB and explained that he saw the worker on August 24, 2015 for a periodic health exam at which time the worker complained of bilateral shoulder pain. During an appointment on September 21, 2015 the worker confirmed that he had difficulty elevating his arms for years. They felt weak. The worker explained that repetitive heavy box lifting had always been an important part of his work as a butcher.
On May 9, 2018 the worker was assessed at OHCOW at the request of the worker’s representative. The assessor provided a background in terms of his medical experience and engineering background. The assessor notes that the worker has worked as a butcher for 25 years. While the exact work duties vary, the general physicality of it is quite persistent. The worker spends a considerable amount of time cutting meat. The assessor provides an explanation of the worker’s daily activities as follows:
o He does not work on Sunday and Monday.
o On Tuesday he prepares sausage and lifts boxes of meat and stuffs it into grinders. He then handles all of the raw sausage.
o On Wednesday he is boning meat such as pork loin, beef and other cuts with a band saw or a hand saw. The cutting is done at a table at approximately waist height. He uses a knife in his right hand. There is considerable force as he has to cut through the various textures and types of meat. The cutting action is done with a driving force involving the entire right upper extremity. There is repeated and forceful extension of the arm to approximately 45 degrees with abduction to approximately 40 degrees.
o Thursday is also spent boning and cutting.
o On Fridays and Saturdays he cooks and cuts the meat. A large part of his business involves dealing with smoked meats and loading trays of pork and other meats into the barbecue oven. The oven is at approximately chest height and he is continually reaching up using both hands to lift the trays of meat. There is an elevation of the arms to shoulder angle in doing so. He has tried using boxes to stand up on in to make this more comfortable for his shoulders.
o In totality the worker described constant use of his upper extremities in his job. In particular he relies on his dominant right arm. While there are not a lot of tasks that are above shoulder height, there is considerable reaching and stabilization of his arm up the shoulder to do most everything. Post surgery, the worker realized how much he uses his shoulder as there was almost nothing that he could do in the shop with the injured shoulder joint.
o The assessor goes on to explain that in December of 2008 the worker slipped and fell on ice taking a customer’s order to their car and injured his right shoulder. He went on to have an ultrasound in March of 2009 that confirmed a full thickness tear. In referencing the surgeon’s note (not on the case record) conservative management was recommended although the worker was an ideal candidate for arthroscopic surgery. Over time the shoulder worsened and the physical nature of the work, particularly seemed to aggravate things. The worker did not want surgery and tried to deal with the symptoms.
o The worker couldn’t recall a prior history of shoulder issues and has no other medical condition that could be a factor in the development of a tendon tear. The worker reported no hobbies, sports or recreation or otherwise that may have contributed to his right shoulder condition.
o The assessor referenced 5 studies. The various studies note that that in terms of meat cutters, their job was found to involve high force and high repetitive tasks. As well, butchers were found to be one of the only job titles with increased risk of upper extremity issues and that the most common site of complaint was the shoulder.
o The assessor notes that a WSIB claim was not filed in 2008 relating to the fall at work. The worker is self-employed and was not aware that he could file a compensation claim. There is no mention of this acute injury in the WSIB adjudication and the surgeon’s clinical notes from 2009 does not appear to be in the WSIB file.
o In summary the assessor notes that the worker had a fall at work in December of 2008 and injured his right shoulder. Subsequent ultrasound indicated a tear of his supraspinatus. This progressed over the years to the point that the worker required surgery in 2016. Over the years he continued to work as a butcher whose job involves significant ergonomic risks for the development of shoulder issues in particular and there are repetitive and forceful tasks of force, arm abduction and extension and repetition in handling and cutting meat. The biomechanics of these activities would certainly contribute to rotator cuff pathology. Besides his occupation, the worker seems to have no other risk factors for the development of shoulder issues.
o The assessor opined that working years as a butcher coupled with the injury in 2009 led to the development of the right shoulder tendonitis.
On October 31, 2018 the worker representative wrote to WSIB referencing the report from OHCOW and requested a reconsideration based on the medical opinion provided by the OHCOW assessor.
On January 18, 2019 the worker representative provided another two submissions referencing policy 15-02-03 Pre-Existing Conditions: a copy of internet research “An Analysis of Work-Related Musculoskeletal Disorders among Butchers in Kano Metropolis, Nigeria” and a copy of the Workplace Safety and Insurance Appeal Tribunal (WSIAT) medical discussion paper entitled Shoulder Injury and Disability. According to the worker representative, both documents speak to the nature of the work on either pre-existing conditions or conditions that may have been and remained asymptomatic had the work not played a role in accelerating or contributing to the natural aging process. It is the position of the worker representative that the work performed by the worker was a significant contributing factor in the development of the worker’s rotator cuff tear.
Findings
In determining whether the criteria required establishing initial entitlement has been met for a right shoulder rotator cuff tear, I am guided by policy 11-01-01. I am required to determine whether the documentary and medical evidence supports a personal work-related injury, proof of accident and that the diagnosis provided is compatible with the accident or disablement history. In order to make this determination, I have taken into consideration the following:
Policy 11-01-01 states that an allowable claim must have the following five points
an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.
In this case the evidence confirms the presence of a worker and employer. The worker is a self-employed butcher/meat cutter and has had WSIB coverage since December of 1993.
The OHCOW report confirms that the worker initially injured the right shoulder in December of 2008 and went on the see the surgeon in October of 2009 at which time the worker decided to proceed with conservative treatment. It is surprising that the worker did not reference a slip and fall at work in December of 2008 when speaking with the Eligibility Adjudicator and that neither the worker nor his representative provided the medical reporting pertaining to the December 2008 slip and fall at work, as this appears to the be precipitating event. It is unclear as to why the Eligibility Adjudicator, upon receipt of the OHCOW report did not follow-up with the worker to undertake additional enquiries and obtain the medical reporting going back to December of 2008.
Nevertheless, although medical reporting from 2008/2009 until August of 2015 is not available and there is the likelihood of a prior slip and fall injury from December of 2008 which possibly initiated the right shoulder symptoms, I am satisfied that the medical evidence and in particular the OHCOW report support that the work performed as a butcher, 5 days a week on average in and of itself would likely cause a right shoulder injury. Although there appears to be a delay in reporting the injury to WSIB, I am satisfied that the accident history, a possible work-related fall onto the right shoulder in December of 2008, followed by many years of work involving high force and highly repetitive tasks involving the upper extremity and in particular the right shoulder, supports a personal work-related injury and proof of accident.
In arriving at this decision I relied on the April 1, 2016 report from Dr. Kavalsky. I have afforded significant weight to the OHCOW report dated May 9, 2018 given that Dr. Pysklywec is the only individual/physician who provided a complete history of the worker’s injury and specifically outlined the job duties and more importantly, the associated risk factors. The OHCOW physician also included studies that support the development of upper extremity/shoulder injuries for individuals who work as butchers/meat cutters.
Although the worker representative references policy 15-02-03 Pre-Existing Conditions, this policy states that entitlement for a work-related injury/disease will not be denied due to the existence of a pre-existing condition. Once initial entitlement is established, the decision-maker considers the impact, if any, of pre-existing conditions on the worker’s ongoing impairment. In my view, policy 15-02-03 is not appropriate when addressing an initial entitlement decision and has not been considered in this case.
As a result of my analysis, I am satisfied that there is evidence of a personal work-related injury and that the accident history is compatible with the diagnosis of a rotator cuff tendon tear. Therefore I find that the criteria required allowing initial entitlement for the right shoulder rotator cuff tear has been met. I also find that it is reasonable to allow the surgical repair on February 2, 2016. The details of the lost time from work is not available on the case record and is remitted back to the operating area to determine along with the recovery of the right shoulder.
CONCLUSION
I conclude:
Initial entitlement for the right shoulder on the basis of a rotator cuff tear is allowed as is the surgical repair on February 2, 2016. The details of the lost time from work is not available on the case record and is remitted back to the operating area to determine along with the recovery of the right shoulder.
The worker’s objection is allowed.
DATED: June 25, 2019
D. Gowanlock
D. Gowanlock
Appeals Resolution Officer
Appeals Services Division