Worker v. Employer, 2023 CanLII 34282

20230039

worker

REPRESENTED by:

employer (not participating)

videoconference – January 31, 2023

HEARD by:

DATED:

Chantal Reid, appeals resolution officer

FEBRUARY 8, 2023

ISSUE

The worker objects to the eligibility adjudicator’s decision dated July 22, 2022, which denied initial entitlement to the left shoulder.

BACKGROUND

The worker has been employed as a prep cook for 18+ years. They claimed entitlement for a left shoulder injury, which they attributed to their heavy and repetitive work duties. The worker had a telephone appointment with their family doctor on February 22, 2022, who referred the worker for diagnostic testing and an assessment with an orthopaedic surgeon.

Dr. Lobo submitted a Health Professional’s Report (Form 8) dated June 20, 2022, noting diagnoses of left shoulder rotator cuff tendinitis, subacromial bursitis, acromioclavicular (AC) joint synovitis and biceps tenosynovitis and was recommending an expedited surgery.

In a decision letter dated July 22, 2022, the eligibility adjudicator explained they reviewed the left shoulder injury as a gradual onset disablement and determined the date of injury as February 22, 2022, the date the worker first sought medical attention for their left shoulder pain. The eligibility adjudicator found the above-noted diagnoses to be degenerative in nature and not caused by the work duties. They denied initial entitlement as they found the worker’s left shoulder injury did not arise out of and in the course of their employment.

AUTHORITY

Operational Policy Manual

Published

11-01-01 Adjudicative Process

15-02-03 Pre-existing Conditions

November 3, 2008

November 3, 2014

REFERENCE MATERIAL

Workplace Safety and Insurance Appeals Tribunal (WSIAT) medical discussion paper titled Shoulder Injury and Disability prepared by Dr. Terry S. Axelrod and Dr. Daniel E. Axelrod, published January 2020.

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find the worker has initial entitlement for their left shoulder injuries.

Employer Position

The employer is not participating in the appeal.

Worker Position

In their Intent to Object form dated July 22, 2022, the worker noted their disagreement with the denial in this case. They have an approved gradual onset claim for the same injuries and surgery on the right side. The worker feels their left shoulder condition and need for surgery is attributed to the same repetitive stressors that caused their right shoulder injury that being the work they have been doing for 18+ years. The worker argues since the cause, the injury and the surgery are the same for the left shoulder as was allowed for the right; they should have entitlement for the left shoulder as well.

In their opening and closing statements, the worker representative noted their disagreement with the initial denial. They felt if one carefully reviewed the job duties of this permanent full-time employee, one would find a very strong link between the duties and the injury. In closing, the worker representative opined that in coming to the decision to deny initial entitlement, there must have been an assumption that all the worker does is cook with no real force or repetition. However, this is not the case. The worker has testified how much of their work they do with over-shoulder reaching, lifting significant weights above shoulder height, pushing and pulling forces involved and the need for repetitive forward reaching and heavy carrying. Considering the worker has performed these duties for 7 hours per day for over 18 years, it is not unreasonable that the injury occurred.

The representative noted that the worker is performing a high-demand type of work and it is not surprising when this type of worker does not report every ache and pain as these are commonplace in this type of environment and regular reporting would be a waste of time. These types of workers self-modify and self-medicate and only stop working or go to the doctor when their pain becomes unbearable and interferes with their work and home life. This is the case we have today.

The worker testified they are the sole income earner and they could not afford to take time off. The worker testified they were mindful of working in a way as to not cause further injury to their arm in the hopes of continuing to work and earn a living. In having not fully investigated the mechanics of the work duties, the eligibility adjudicator arrived at an incorrect decision. The representative argued the original decision did not fully appreciate the details of the job, the environment or the forces exerted. They noted that Dr. Lobo clearly stated the injury was work-related and there was no reason to dismiss this opinion. The representative argued that the work duties were a significant contributing factor to the onset of the left shoulder injury. Having heard the worker’s testimony on the full scope of their work duties, they find that it is more probable that not that the injury is work-related and they are requesting that the denial of initial entitlement be overturned.

Relevant Case Details

On February 22, 2022, the worker had a telephone consult with Dr. Bolger, Family Physician, to discuss their left shoulder pain. The worker wanted a referral to Dr. Lobo who had completed the right shoulder surgery. The worker noted that at the time of their right shoulder surgery, there was an expectation that they would need the same procedure for the left shoulder at some point. The referral to Dr. Lobo noted the worker was suffering from longstanding left shoulder pain and restricted range of motion.

The worker underwent an X-ray on March 3, 2022, which revealed mild osteoarthritis of the AC joint and subtle lucencies in the distal clavicle, which are typically stress related and were new from the 2015 test. The worker also had an ultrasound on the same day, which confirmed AC joint osteoarthritis, tendinosis without evidence of a tear and subacromial bursitis. While not indicated in the conclusions section of the report, there was a note of bony irregularity/osteophytes at the AC joint.

The worker saw Dr. Lobo on June 20, 2022. Dr. Lobo identified that the worker’s heavy and repetitive work likely caused an exacerbation of left-sided supraspinatus tendinitis, AC synovitis and biceps tenosynovitis.

On the Form 8 received June 23, 2022, Dr. Lobo noted the worker had a progression of left anterolateral shoulder pain over the prior six months. The diagnoses were left shoulder rotator cuff tendinitis, subacromial bursitis, AC joint synovitis and biceps tenosynovitis. Dr. Lobo noted the worker had “maximized non-operative treatment” and surgery was recommended as was a referral through the specialty program for an expedited surgery. Dr. Lobo did not identify any pre-existing conditions or other factors that might impact recovery.

In the Employer’s Report of Injury (Form 7) dated July 7, 2022, it was noted that the worker reported the injury on July 6, 2022. They noted the worker was able to continue with their regular work duties with no accommodations. The employer did not indicate any concerns with this claim. I also note in the case memo #A, in the section for the call to the employer, the eligibility adjudicator wrote “no objections noted”. It is unclear if the employer was contacted and had no objections or if this comment relates to the fact there were no objections noted on the Form 7.

In a statement to the WSIB on July 19, 2022, the worker advised their left shoulder pain developed over time and that they attribute their left shoulder issues to their work duties. The worker advised they have a prior allowed claim for their right shoulder for the same issues.

As per the case memo of the same date, the worker has been in the same job for 18.5 years and works 36 hours per week. The worker is employed as a cook and is required to create chicken spits. This process involves lifting a tote filled with chicken from the fridge with both arms, weighing roughly 50-70 pounds. The worker then pushes/pulls the whole chickens onto a spit (five whole chickens placed on each spit). The worker creates anywhere from 24-48 spits of chicken per day. The worker then places the spits either in the fridge or in the oven, which is just above shoulder height. Once the chicken is cooked, the worker takes the spit out of the oven and places it in a warming drawer at waist level. The worker also preps other food throughout their shift such as ribs, wings, rice, mashed potatoes and club wraps.

The worker reported a change in work tasks in March 2020, due to COVID. The worker took on additional work duties such as blanching of potatoes and wings as well as dishwasher duties. The worker washes dishes 3-4 times per shift and each period takes roughly 20-30 minutes to complete.

Worker testimony

The worker was hired on January 12, 2004, and has been employed in the same role for the 18 years they have been working for this employer. They noted that there have been some changes in the types of prep work required, based on menu changes, but overall, the work duties have been consistent throughout their career.

They started to notice pain in their left shoulder in mid-2008. Prior to February 2022, they used over-the-counter Tylenol or Tylenol with codeine or topical analgesics for pain control/management. This self-treatment was effective until February 2022 which is why they finally went to the doctor. The worker advised that they told their supervisor when they went for X-rays and again when they saw Dr. Lobo and surgery was recommended. They testified that when they reported that surgery was required, their employer stated that the worker needed to provide a medical note before they would complete the Form 7. When the worker had another follow-up, Dr. Lobo sent in the Form 8 to start the claim process. It was not until the worker was speaking with WSIB that they were made aware that the employer did not need a note. The worker asserted they reported the injury to their employer months prior to the notation on the Form 7.

The worker confirmed they had the exact same surgery on their right shoulder with excellent results.

The worker is 5’7 and advised that much of the work tasks require over-shoulder reaching and frequently, it is over-shoulder lifting and carrying with some weight involved.

When asked to describe a typical day, the worker provided the following details:

When they first arrive, the worker begins to prep food. They grab a large sauce kettle, weighing 25 lbs., for mashed potatoes. They need to fill the kettle and then put it on the stove to boil. Once boiling, they lift the mashed potatoes above shoulder height to put them in the kettle.
They place big pots on the stove to cook soup and gravy.
They set up the deep fryer and filter pan. The filter sheets are kept on a shelf two feet above their head.
Next, they make a slurry from a mix that is stored on a low shelf.
They get bags of wings from the fridge, each bag is about 10 lbs., and they carried two at a time.
In order to coat the wings, the worker grabs each bag with both hands and shakes them vigorously with arms held out in front of them near or at shoulder height. The worker would shake 20 lbs. of wings at a time. The wings are then put in the deep fryer.
Then they make cookies, which are kept in the freezer at shoulder height. Once on a sheet and ready for cooking, these are placed in a convection oven, which is at shoulder height
Next, they prepare the ribs for cooking. They place 9 ribs in each pan and then fill the pan with water to put in the oven. The full pan weighs 20-30 lbs. Once cooked, they carry the cooked ribs with water, at waist height, they dump the water/grease in a container that is dumped outside in a bin that is chest height. This action requires the worker to lift one elbow above shoulder height and support the container with the other arm.
They wrap all the ribs, then these are placed in the fridge on a shelf about chest height.
In order to make the rice, they scoop rice into a pan containing 4L of water and put the pan in the oven at shoulder height.
Once all the above is done, it is time to puts chickens on spits for cooking. Each chicken spit is about 15 lbs. The oven for the spits cooks six spits at a time. The top spit-rotator is above shoulder height and the lowest is at shin level.
They put spits of chicken in the oven every thirty minutes. Once the chickens are cooked, they lift the spits out of the oven.
To make up the spits, they bring a tote full of chickens, weighing 30 kg, and put it on the raw prep table, which is waist high. They reach up and into the tote to grab a chicken. They push five chickens onto a spit. They use their left hand to lift one end of the spit and they baste the birds with their right hand.
The totes are stored in the fridge, one stacked on top of the other, the highest being above shoulder height.
They repeat this process for 6 to 15 totes of chicken per day depending on how busy it is.
They carry the spits from the prep area to the oven in one hand, with the spit perpendicular to the ground. Then they swing the spit with their right hand so the bottom swings up and the bar is parallel to the ground, and they catch the bottom end of the spit in their left hand. They use both hands to lift (or lower) the spits onto the rotators.
When the soup or gravy is ready, the worker lifts the heavy stockpots and pours the soup or gravy into the wells for the servers to access. This action requires the worker to lift their right elbow above their shoulder and hold the weight of the pot with their left arm.
Then the worker moves to the prep table, which is waist height, to prep tomatoes and peppers. They also grab the cooked chickens from the prior day to dice them up. These are kept in the fridge on shelves from waist to shoulder height.
The worker advised that all pots are hung above shoulder height, so they must reach up and lift the pots down when needed.
When doing dishes, the worker noted the kitchen pit is set up where they have to reach for the dirty dishes with their left arm. They will do the dishes several times throughout the day.
They make the club wraps, which requires constant rolling of wraps, pushing their arms forward and away from their body.
In order to slice beef, the worker uses the slicing machine with their right arm and catches the sliced beef with their left hand, held out and in front on them.

On Tuesdays and Thursdays, totes of chickens are delivered. They received 15-20 totes that need to be stacked in the fridge. They stack the totes five high, with the top tote above shoulder height. The totes weigh 30 kg.

On direct questioning, the worker confirmed that most shelves are at or above shoulder height and daily work tasks require above shoulder reaching and lifting.

The worker has not yet had the left shoulder surgery. They explained that as the sole income for their household, they could not afford to be off work without benefits. They confirmed they have not lost any time from work for their left shoulder injury, other than taking time for medical appointments. They have been performing their regular work duties, with self-accommodations.

Assessment of the Evidence

According to policy 11-01-01 Adjudicative Process, decision-makers use the “five point check system” when ruling on entitlement to benefits. An allowable claim must have the following five points:

An employer
A worker
A personal work-related injury
Proof of accident, and
Compatibility of diagnosis to accident or disablement history.

There is no dispute regarding the worker and employer relationship. The matters to be resolved are whether there was a personal work-related injury by accident, proof of that accident, and, if so, if the injury to their left shoulder is compatible with the accident history. The evidence must show the personal injury not only happened at work but also happened because of the work, by way of an accident.

When adjudicating whether proof of accident is present, the WSIB decision-makers look for the “four immediates” (i.e. immediate pain, immediate reporting, immediate medical attention, and immediate work disruption). Additional evidence, such as the presence of witnesses and continuity of complaint to co-workers following the accident, is also considered, when appropriate.

In this specific case, the worker has longstanding left shoulder symptoms, but in reviewing the pre-accident medical reports, there is no evidence the worker sought medical attention for their left shoulder for several years prior to the February 2022 appointment. I note that from February to June 2022, the worker saw their family doctor on several occasions for another health issue, with no complaint about their left shoulder. I also note the worker continued to perform their regular work duties despite the complaints of increasing left shoulder pain and waiting for a surgical consult.

I also note the operating area adjudicated initial entitlement based on the merits of the case. The claim was denied as the decision-maker found the injuries were not compatible with the disablement history. There were no concerns noted with the delays in reporting the injury to the employer, despite the Form 7 showing 4 months from the first medical to the reporting.

When I consider the totality of the evidence, I am persuaded the worker is a stoic individual who continued to do what they needed to do despite increasing symptoms. I do not find there are any delays of significance, noting the worker’s testimony that they advised their employer of their left shoulder injury when they went for diagnostic testing and were being referred to the surgeon. I found no credible evidence to contradict this testimony.

In the context of this claim, I must now decide whether the worker’s job duties significantly contributed to the onset of left shoulder rotator cuff tendinitis, subacromial bursitis, biceps tenosynovitis and AC joint synovitis. The diagnostic testing also revealed AC joint osteoarthritis however, Dr. Lobo did not identify this as a diagnosis or cause for the worker’s symptoms or dysfunction.

In order to better inform my decision, I referred to the WSIAT discussion paper titled Shoulder Injury and Disability. I acknowledge that Dr. Lobo provided a brief assertion that the conditions were secondary to the heavy and repetitive work duties; however, these conditions can also be the result of normal age-related changes.

Rotator cuff tendinitis

The discussion paper noted that tendinitis and tendinosis are used interchangeably. This condition is considered an inflammation of the tendons of the rotator cuff. It is due to microtears of the fibres of the rotator cuff tendon but no actual tear will be seen on an MRI, rather just increased blood flow and swelling of the tendon are noted. Any variety of tears can occur after trauma to the arm. As such, tendinosis can occur after trauma or excessive strain on the rotator cuff tendons both in vocational and avocational activities. This inflammation can cause pain and limitations of motion.

Based on the information from the discussion paper, I accept that tendinitis can occur from excessive strain, such as with a repetitive strain injury. In this case, the worker has claimed an injury because of chronic overuse, in a situation where there was little opportunity for the tendon to have time to rest and heal. When I combine this fact with the assertion from the health professionals that the injury is related to heavy and repetitive work duties, I find that the diagnosis of rotator cuff tendinitis is compatible with the disablement history.

Subacromial bursitis

The discussion paper states that bursitis refers to inflammation with fluid accumulation in the sub-acromial and sub-deltoid bursae of the shoulder. Bursitis is usually a reaction to some other injury or more chronic condition. Bursitis in and of itself rarely occurs in isolation; bursitis almost always develops in response to irritation from neighbouring structures. A bony outgrowth (spur of the acromion or osteophytes from an arthritic AC joint) or a thickened or a partially torn tendon of the rotator cuff may lead to an irritation of the bursa.

I interpret this to mean that bursitis can develop further to repeated episodes of inflammation, such as with chronic tendinitis. I note the diagnostic testing revealed the presence of osteophytes at the AC joint, however, I find it relevant that while there were osteophytes noted in the report, neither the technologist nor Dr. Lobo felt these merited mentioning in their comments. I placed more weight on the conclusive diagnoses provided by Dr. Lobo over the diagnostic testing without clinical corroboration. Therefore, I am accepting that bursitis developed in response to the diagnosed tendinitis, and is thus, compatible with the disablement history.

Biceps tenosynovitis

The discussion paper describes tenosynovitis as inflammation of the lining of the tendon sheath around the tendon. Both the tendon and tendon sheath can be inflamed at the same time. Tenosynovitis can be caused by strain, overuse, injury or too much exercise. This condition may also be linked to diseases such as diabetes, rheumatoid arthritis, or infection.

As above, I find that the worker’s heavy and repetitive work duties are the likely cause of this condition. There is no evidence supporting any other more probable cause. As such, I find the diagnosis of biceps tenosynovitis compatible with the disablement history.

AC joint synovitis

The discussion paper explains that at the level of any joint, the bones are held together by an envelope of tissue (the capsule) and by strong bands (the ligaments). The capsule makes a joint watertight; containing the joint fluid, also known as synovial fluid, which serves to lubricate the joint. If the amount of joint fluid is increased, it is noted as effusion. This condition is often accompanied by an inflammation of the innermost layer of the capsule, a condition known as synovitis.

In reviewing the available evidence and the literature, I find a lack of certainty related to the cause of the AC joint synovitis. This swelling may be related to the chronic overuse of the shoulder joint as a result of the work duties or may be related to mild AC joint osteoarthritis identified in the diagnostic testing. However, I note that Dr. Lobo reported the worker suffered an exacerbation of the diagnosed conditions, without providing any specificity on which diagnoses were aggravated.

Policy 15-02-03 Pre-existing Conditions states that entitlement for a work-related injury will not be denied due to the existence of a pre-existing condition. Once initial entitlement has been established, the impact, if any, of the pre-existing condition, on the work-related injury is considered. Where the clinical evidence demonstrates that a pre-existing condition has been aggravated as a result of a work-related injury/disease, benefits continue until the worker recovers from the aggravation of the pre-existing condition.

In the foregoing conclusions, I have accepted initial entitlement for the left shoulder based on the diagnoses of rotator cuff tendinitis, bursitis and biceps tenosynovitis. Therefore, I find that any aggravation of a pre-existing condition, whether that be AC joint osteoarthritis and/or synovitis, would be the responsibility of this claim.

Entitlement to the left shoulder injuries granted

In determining the question of entitlement, I find the worker’s job duties, as described above, involved an injuring process compatible with the onset of the left shoulder injuries. I have relied on the description of the job duties confirmed by the worker and the direct and explicit medical opinion provided by Dr. Lobo as well as the other health professionals who indicated a probable link to the work duties. I have concluded there is a causal link between the work duties and the worker’s injuries.

Given all this and in the absence of a medical opinion to the contrary, I find on the balance of probabilities that the worker has initial entitlement benefits for the left shoulder rotator cuff tendinitis, subacromial bursitis and biceps tenosynovitis and an aggravation of the pre-existing osteoarthritis and synovitis of the AC joint. I find the eligibility criteria set out in policy 11-01-01 have been met.

Benefits flowing

Based on the allowance of the left shoulder injury, I find the worker is entitled to loss of earnings (LOE) benefits for any wage loss incurred to attend medical appointments for their left shoulder from February 2022 to the present.

I note in Dr. Lobo’s report dated June 20, 2022, that surgery is recommended to address the compensable injury. As such, I grant entitlement for the surgery and associated LOE benefits for the post-surgery recovery period.

CONCLUSION

The worker’s objection is allowed.

DATED February 8, 2023

Chantal Reid

Appeals Resolution Officer

Appeals Services Division