Worker v. Employer, 2023 CanLII 112865

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER:

20230126

OBJECTING PARTY:

worker

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

employer

REPRESENTED by:

self

HEARING:

VIDEOCONFERENCE

HEARD by:

l. mansueti, appeals resolution officer

ADDITIONAL ATTENDEE:

DATED:

Wsib case manager, observer

OCTOBER 6, 2023

ISSUE

The worker objects to the Eligibility Adjudicator (EA) decision letter dated January 9, 2023, denying initial entitlement to benefits for a gradual onset-type injury involving the bilateral shoulders.

BACKGROUND

On October 13, 2022, the worker reported to the employer he was experiencing bilateral shoulder pain that they attributed to performing his regular job duties, namely operating a scoop tram over time. The worker was working as a Scoop Tram Operator/Production Miner at the time of injury, and he had worked with the employer for approximately 14 years. The worker is right hand dominant.

The worker reported he experienced a gradual onset of bilateral shoulder symptoms. He initially sought medical attention for their left shoulder on February 5, 2020, and he was diagnosed with a suspected partial thickness tear, supraspinatus tendon tear, and possible mild biceps tendinosis. A magnetic resonance imaging (MRI) scan dated May 25, 2022, showed evidence of bilateral rotator cuff tears. The worker continued performing his regular job duties, and he reported a workplace injury to the employer on October 13, 2022.

The decision letter dated January 9, 2023 communicated there was no entitlement to benefits on the basis the worker’s bilateral shoulder rotator cuff tears were not compatible with his job duties. The worker objected to the decision dated January 9, 2023. The operating area reconsidered and upheld the decision to deny entitlement to benefits, as per the reconsideration letters dated February 13, 2023 and May 8, 2023. The worker continued to object to the decision dated January 9, 2023, and this is now the issue before the Appeals Services Division (ASD).

AUTHORITY

Section 13 of the Workplace Safety and Insurance Act (WSIA), 1997, as amended

Operational Policy Manual

Published

11-01-01 Adjudicative Process

15-02-01 Definition of an Accident

November 3, 2008

October 12, 2004

ANALYSIS

I have carefully considered all of the available information, testimony, legislation and relevant operational policies in reaching this decision. For the reasons that follow, I find the worker is entitled to benefits for his bilateral rotator cuff tears.

Worker Statement

As per the Worker’s Report of Injury (Form 6), the worker submitted he experienced a gradual onset-type of injury while operating a scoop tram. He indicated that while operating the scoop tram, his arms are positioned on the armrests and he operates the joystick for steering with his left hand, and he operates the joystick for the bucket with his right hand. He indicated this puts pressure on the shoulders while riding on the rough terrain in the mine. The worker indicated their shoulder symptoms commenced years ago, as they experienced a gradual onset of injury. He indicated he experienced shoulder soreness after every shift; however, he did not realize the damage that was being caused over time. The worker indicated he continued working his regular duties and he did not lose time from work.

The worker advised the operating area that while operating the scoop tram, his arms are positioned at a 90° angle resting on the arm rests while seated in the cab. He indicated he is 5’4”. The worker indicated he puts pressure on his shoulders to operate the scoop tram on rough terrain, which he believes caused the shoulder tears to develop. He advised the pain started 4 years ago, and he did not think very much of it at the time. The pain increased to the point where he could no longer operate the scoop tram, which is when he reported the injury to the employer.

The worker testified he began operating a scoop tram in 2012 in his role as a Production Miner. He stated he began experiencing problems with his shoulders when he first started operating the scoop tram, but he did not initially attribute his shoulder symptoms to his work duties. Over time, the worker’s shoulder symptoms worsened, and upon receiving medical attention and a definitive diagnosis in 2022, he realized his condition was due to operating the scoop tram given the poor ergonomic set up and body mechanics involved in executing the job demands. The worker explained the seat in the scoop tram is adjustable and it is air ride seat; however, the armrests are not adjustable. The non-adjustable armrests are problematic for the worker because he is 5’4”, and when he adjusts the seat to a comfortable setting, the armrests are too high, and places his shoulders in an awkward shrugging position. While operating the scoop tram, he uses his left hand to operate the joystick for steering the scoop tram, and he uses his right hand to operate joystick for the bucket. He reported he is constantly using the joysticks to fill and dump buckets of muck. The worker advanced his shoulder condition is a result of the constant repetitive movements of operating the scoop tram, driving on rough terrain that causes constant bouncing and jostling, and the poor ergonomic set up owing to the non-adjustable armrests.

The worker testified that sometime in 2020 he was playing hockey and fell on his left shoulder. He sought medical attention at that time, and the diagnostic testing showed evidence of a suspected partial tear. The worker testified he was informed that a shoulder tear was not compatible with falling on the ice.

The worker stated he continued working the scoop tram despite having ongoing shoulder symptoms. He explained he took Advil every day to manage his pain and discomfort. In 2022, the worker’s shoulder symptomology increased, and he sought medical attention. It was not until he received a definitive shoulder diagnosis that he began to attribute his shoulder condition to his work duties. It was at that time that he reported his injury to his employer, and he requested not to operate the scoop tram anymore because he could no longer manage the physical demands. The worker indicated the employer reassigned the worker to operate a haulage truck, which he reported was better for his shoulders. The worker testified there was nothing outside of work that may have caused or contributed to his bilateral shoulder condition.

Employer Statement

As per the Employer’s Report of Injury (Form 7), the worker reported a bilateral shoulder injury to the employer on October 13, 2022. The worker advised the employer he believed the injury was caused by operating the scoop tram. The employer indicated the worker has prior WSIB claims for hand-arm vibration syndrome (HAVS) and carpal tunnel syndrome (CTS).

Employment History & Physical Demands

The record contains a document from the employer dated November 19, 2021, outlining the various positions the worker held since 2007:

October 15, 2007 to October 31, 2007 – Underground Labourer

November 1, 2007 to July 12, 2009 – Support Miner

July 13, 2009 to July 8, 2010 – Strike

July 9, 2010 to September 9, 2012 – Support Miner

September 10, 2012 to May 31, 2021 – Production Miner

June 1, 2021 to August 8, 2021 – Strike

September 9, 2021 to present – Production Miner

The record contains a Functional Job Analysis (FJA) for Production Miner. The job involves installing and maintaining pipes for water, air, fill and drainage as well as installing ventilation tubing and jumbo cables. The job of a Production Miner is performed indoors in an underground environment. The physical demands of the job involves occasional lifting, pushing, pulling, continuous whole body vibration, and frequent hand/finger coordination. The essential job functions include:

• Pre-operational inspection (10 per cent of shift) – inspecting scissor truck fluid levels, checking for leaks, tire inspection, and testing operation of scissor deck

• Gathering tools, equipment and materials (1 to 1.5 hours) – lifting, carrying, pushing, and loading materials onto scissor truck deck

• Installation and maintenance of services (80 per cent of shift)

o Moderate to high push/pull and gripping efforts when opening and closing valves

o Reaching overhead and looking up when installing chains, rabbit ears, pipe hangers and messenger cable

o High gripping and pushing efforts when using bolt cutters to cut the chains used to hold up the pipe hangers or the pipes themselves. Each pipe needs a chain to hold it in position.

o Floor to waist or chest height lift of 50lbs when lifting one end of a pipe into position. Two workers will perform the lift. A floor to waist height lift of up to 100lbs when handing the largest 6” pipe.

o High push/pull and gripping efforts when using wrenches to secure the pipe clamps

o Floor to overhead lift of 20 lbs when attaching a section of ventilation tubing to the messenger cable

• Clean-up

o Moderate to high push/pull and gripping efforts when opening and closing valves

o Short carry and a floor to chest height lift and moderate pushing efforts are required to unload used/broken pipes and ventilation tubing.

The record contains a FJA for Scoop Tram Operator. The job of a Scoop Tram Operator is performed by the Production Miner, and it involves operating an 8-yard scoop to transport muck from various headings into haulage trucks or bins. It is noted all work occurs indoors continuously in an underground environment. The physical demands of the job involve medium physical effort. The primary physical demands involve sitting while operating a scoop tram involving whole body vibration, hand/finger coordination, frequent trunk rotation, and continuous gripping. The essential job functions include:

• Workspace set-up (10 per cent of shift) – scaling, setting up brow markers, connecting water hoses, wetting down muck pile for dust control

• Pre-operational inspection of scoop tram (5 per cent of shift) – checking for leaks, checking fluid levels, inspecting tires and wheel nuts, cleaning windows and lights

• Scoop operation (85 per cent of shift) – an 8-yard scoop is used to transport muck from headings to bins or haulage trucks

o Sitting on an air ride seat when driving the scoop

o Exposure to high levels of whole-body vibration when driving the scoop over uneven terrain

• Tire change – 1 to 2 times per year

The record contains an FJA for Support Miner. The job involves operating a conveyor system. The physical demands of a Support Miner includes lifting, pushing, pulling, and carrying on a rare basis (1 to 5 per cent of shift duration). The job involves continuous sitting, machine operation, and whole body vibration. The essential functions of a Support Miner include:

• Pre-operational inspections (10 per cent of shift)

• Cleaning spills and clearing blockages (5 per cent of shift) – floor to waist lift up to 30lbs when shovelling into a wheelbarrow, moderate gripping and pushing efforts when handling the shovel, low pushing efforts to bring the wheelbarrow a short distance to a chute to be dumped. Waist to chest height lift of up to 30lbs when dumping the wheelbarrow. Reaching out from the body when handling the blowpipe and hoe.

• Running the conveyor (85 per cent of shift) – run the feeder and conveyor, sit or stand when watching the muck come down the feeder, remove scrap material from feeder, forward bending and reaching out from the body when retrieving scrap materials, waist height lifting for materials weighing up to 50lbs, low to moderate pulling and gripping efforts to remove some of the scrap material.

Medical Evidence

The record contains an ultrasound of the left shoulder dated February 5, 2020. The report indicated the worker experienced a left shoulder contusion and reduced range of motion (ROM). The ultrasound report indicated there was evidence of suspected partial thickness tear of the supraspinatus and possible mild biceps tendinosis.

An ultrasound of the worker’s bilateral shoulders was completed on October 5, 2021, as he was experiencing bilateral hand and shoulder pain, and limited ROM secondary to pain. The report showed evidence of bilateral focal full thickness tearing of the supraspinatus and mild calcific tendinopathy of the left subscapularis. X-rays of the bilateral shoulders and hand dated October 5, 2021, showed evidence of mild degenerative changes of the bilateral greater tuberosities, suggestive of rotator cuff disease and mild osteoarthritis (OA) of several joints in the hands. No fractures or bony lesions were observed.

An x-ray dated January 25, 2022 of the worker’s bilateral shoulders did not show any evidence of acute fractures or dislocations.

Dr. R. Hodgins, Orthopaedic Surgeon, assessed the worker on January 25, 2022. The report indicated the worker presented with bilateral shoulder pain, right worse than the left, which commenced in the summer. The worker denied experiencing a true injury; however, they indicated they may have injured the left shoulder a few years prior. The worker indicated the shoulder pain is worse at work with overhead reaching. Upon examination, the worker had full ROM and mild impingement. The worker indicated they never underwent any physiotherapy treatment. Dr. Hodgins reviewed the diagnostic testing, and indicated the worker likely had bilateral rotator cuff tears. Dr. Hodgins recommended the worker engage in physiotherapy treatment and take anti-inflammatory medication as needed. A magnetic resonance imaging (MRI) was ordered to assess both shoulders, as the worker was noted to be quite young for this condition.

MRI scans of the worker’s shoulders dated May 25, 2022, indicated the worker was experiencing shoulder pain. The following was gleaned from the reports:

Right shoulder

• Background tendinopathy with full-thickness tearing of the majority of the supraspinatus with a few bursal sided fibres remaining partially intact posteriorly

• Infraspinatus tendinopathy with partial articular sided tearing of the anterior leading edge

• Subscapularis tendinopathy with a small partial articular sided tear of the superior fibres

• No significant rotator cuff atrophy demonstrated

• Mild degenerative changes at the acromioclavicular joint

Left shoulder

• Essentially complete tear of the supraspinatus tendon with a few bursal sided fibres remain partially intact posteriorly

• Partial articular sided tearing of the anterior to mid infraspinatus

• Partial articular sided tearing of the superior to mid subscapularis

• Post long head biceps with a focal area of tendinopathy of the partial tearing and in the distal intra-articular portion

• Mild degenerative changes at the acromioclavicular joint

Dr. Hodgins reassessed the worker on June 15, 2022 via telephone visit. The consultation report indicated the worker continued to have difficulty working and lifting. The worker indicated he did not experience any improvement in his shoulder condition since the initial assessment. Dr. Hodgins reviewed the MRI results with the worker, and the worker agreed to proceed with surgery. Dr. Hodgins indicated the worker exhausted non-operative health care treatments. The worker provided verbal consent to proceed with a right shoulder arthroscopic rotator cuff repair and subacromial decompression.

On December 15, 2022, Dr. K. Herranen, the worker’s primary care physician, completed an employer-generated functional abilities form, indicating the worker had restrictions for a bilateral shoulder injury.

B. Culbertson, Physiotherapist, assessed the worker on January 4, 2023, and completed a Shoulder Program of Care (POC) initial assessment. The report indicated the worker was experiencing weakness, painful arc and loss of motion. Reference was made to an MRI report that showed rotator cuff tearing. The report indicated the worker had carpal tunnel syndrome (CTS) surgery on December 19, 2022 on their right hand, and left hand CTS surgery was scheduled for February 3, 2023. The worker was off work while they were recovering from surgery. The worker testified his CTS surgery was approved under a prior WSIB claim.

B. Culbertson submitted a report dated February 27, 2023, providing a medical opinion with respect to the worker’s bilateral rotator cuff tears. The report, states, in part:

In my professional opinion and based on [the worker’s] description of job tasks (scoop operator), I believe these muscle tears are related to his work. Specifically, the positioning for operating the scoop truck, where his arms are not moving on the armrests but the rest of the seat and the truck as jostling from the uneven ground when working underground.

When [the worker’s] arms are on the armrest, the armrests are non-adjustable so only the seat can move. This is important as; he has to brace when hitting potholes/walls underground, therefore his shoulders are taking more of the load.

Dr. Herranen submitted a report dated March 21, 2023 providing a medical opinion regarding the origin of the worker’s bilateral shoulder rotator cuff tears. The report, states, in part:

The above is a patient of mine and has suffered bilateral rotator cuff tears. He recently had his right tear surgically repaired. He had a tear in his bilateral supraspinatus and infraspinatus tendon. Based on review of his job description including the ergonomics of his scoop tram, I believe that these injuries were a direct result of his duties at work. Having stationary armrests with a mobile seat and hitting multiple uneven surfaces would cause strain on his shoulder joints and the tendons involved in it. This would over time cause tears and inflammation in the tendons and possibly the glenohumeral joint itself.

On April 21, 2023, Dr. Hodgins provided a medical opinion in support of the worker’s claim for benefits. The report, states:

This patient has bilateral rotator cuff tears and he recently underwent right shoulder arthroscopic rotator cuff repair and may require surgical repair of his left shoulder.

He denies any previous injury to his shoulders. He is employed as a scoop tram operator and based on the job description these tears could have occurred at work.

Several factors point to the fact that this may be a workplace injury. First off there is no history of injury. Secondly this has occurred bilaterally and are likely caused by his repetitive use of his arms and shoulder at work.

Therefore upon review of his MRI and findings these injuries are typical to people with his job description and are likely caused by the repetitive nature of his job.

Assessment of the Evidence

In order to establish initial entitlement to benefits, operational policy 11-01-01 states in part:

Five point check system

All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system."

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.

With respect to the “five point check system,” the issues to be determined are whether there is evidence of a personal work-related injury, proof of accident, and compatibility of the diagnosis with the disablement history.

The Workplace Safety and Insurance Board recognizes four different types of accidents, two of which are categorized as being disablements. With regard to this, operational policy 15-02-01 states in part:

Accident includes

• a wilful and intentional act, not being the act of the worker

• a chance event occasioned by a physical or natural cause, and

• a disablement arising out of and in the course of employment.

Chance event

A chance event is defined as an identifiable unintended event which causes an injury. An injury itself is not a chance event.

Disablement

The definition of disablement includes

• a condition that emerges gradually over time

• an unexpected result of working duties.

The worker is claiming entitlement for a disablement-type accident as a condition that emerged gradually over time. For a disablement-type injury, the worker does not have the benefit of the presumption under Section 13(2) of the WSIA, which states:

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.

The onus is on the worker to demonstrate the injury not only occurred during the course of the employment, but that it also arose out of the employment. In other words, the evidence must clearly show that the work caused the injury. In accordance with the Section 13 of WSIA, the burden to prove the work-relatedness of the disablement falls upon the worker.

The worker is claiming entitlement to benefits for their bilateral shoulder injuries as a work-related gradual onset-type injury due to operating a scoop tram since 2012. The worker representative submitted the worker’s position of a Production Miner/Scoop Tram Operator required him to operate a scoop tram most days; however, the worker performed various other jobs with the employer that significantly contributed to his shoulder injury. The worker’s job duties as a Support Miner required performing tasks involving lifting and installing heavy wall industrial pipe overhead, installing and maintaining ventilation fans and systems overhead and operating a picking belt. The worker representative is of the view the ergonomics and design of a scoop tram significantly contributed to the worker’s shoulder injuries. The worker was described as having a small stature and the seat and operating design of the scoop tram placed him in an awkward and vulnerable position. It was noted the joystick positions on the left and right side are not adjustable, which caused a “shoulder shrugging” position for the worker while operating the scoop tram. The worker representative indicated the worker’s job demands exposed him to repetitive lifting, pushing and pulling in the various roles he held over the years, and the operation of the scoop tram was the key contributor to the manifestation of his injuries. The worker representative submitted significant weight ought to be applied to the medical opinions provided in this claim file, which support compatibility of the bilateral shoulder tears to the disablement history.

The employer pointed to the fact the diagnostic reports in the file contain evidence confirming the presence of degenerative changes, as well as left shoulder calcification and spurring, which are non-work-related conditions. The employer submitted significant weight should not be applied to the medical opinions in the claim file, as these were based on the information the worker provided to their health care professionals, and it is unclear what information was shared with them. The employer submitted the worker’s job of Scoop Tram Operator involved mostly sitting, and advanced the worker was permitted to take rest breaks as needed. The employer pointed to the Workplace Safety and Insurance Appeals Tribunal (WSIAT) Medical Discussion Paper, titled, Shoulder Injury and Disability (revised 2020), which states soft tissue structures about the shoulder can tear as a result of trauma; however, the vast majority of rotator cuff tears occur without a specific traumatic event. The employer is of the view the worker’s fall on the ice in 2020 caused trauma to the shoulder, and the degenerative changes observed in the 2021 diagnostic reporting likely caused the shoulder tearing. Lastly, the employer indicated that Dr. Hodgins indicated it was “possible” the worker’s shoulder tears were a work-related injury; however, there was no indication it was probable or likely.

In review of the evidence before me, I find the worker’s bilateral shoulder injuries are work-related. I agree that the combination of the poor ergonomic set-up in the scoop tram owing to non-adjustable arm rests causing awkward postures, stationary arm rests with a mobile seat, and jostling and jarring of the body likely caused or significantly contributed to their bilateral shoulder tears. The worker was operating a scoop tram since 2012 and experienced immediate shoulder symptoms, which he did not immediately attribute to performing his work duties. The worker managed his symptoms and continued to work without incident. In 2022, the worker’s shoulder symptoms increased, and he sought medical attention from Dr. Hodgins. The MRI revealed the presence of bilateral shoulder tears, and it was at that time the worker began to attribute his shoulder condition to his work duties. Once the worker identified the causal relationship between his job duties and his shoulder condition, he reported it to his employer and requested not to operate the scoop tram anymore. Based on the foregoing, I find proof of accident has been established in this case.

With respect to compatibility, I have placed significant weight on the medical opinions submitted to the record. The worker’s physiotherapist, primary care physician, and orthopaedic specialist are all of the view the worker’s shoulder injuries are work-related. There is no medical opinion in the record countering the medical opinions provided by the worker’s health care professionals, thus I find deference ought to be afforded to their expert opinions. I have not placed significant weight on the employer’s argument that the medical opinions ought to be discounted because they are based on the worker’s description of his job duties. In comparing the worker’s statements in the record to his testimony, I find the worker was forthcoming and consistent in his description of his job duties and physical demands, thus I have no reason to doubt he presented the information in a similar consistent manner with his health care providers. I do not agree with the employer’s argument that the worker’s bilateral shoulder tears are a result of the 2020 fall on the ice and/or degenerative changes on the basis there is no medical evidence to support this was the case.

In summation, the preponderance of evidence leads me to find the worker’s bilateral shoulder injuries likely arose out of and in the course of their employment as a Scoop Tram Operator. Based on the foregoing, I find entitlement is in order for the bilateral shoulder rotator cuff tears.

CONCLUSION

I conclude the worker is entitled to benefits for bilateral shoulder rotator cuff tears.

The worker’s objection is allowed.

DATED October 6, 2023

L. Mansueti

Appeals Resolution Officer

Appeals Services Division