The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 22, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on February 22, 2001 and April 24, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On May 17, 2000, the claimant submitted a claim for compensation benefits for right arm difficulties which she related to the repetitive nature of her job duties as a head cook and to a shortage of staff. The claimant described the accident as follows:

“Since October my left arm has been hurting therefore have been favoring it. Then in March my right arm started doing the same as my left arm. Now my right arm is more painful than the left. Now I’m going to chiropractor for both arms. In April I worked 19 days with only 2 days off. This made my arm worse.”

An Employer’s Report of Injury form dated May 15, 2000, stated the following:

“Employer has no knowledge of this problem – There is no indication of any problem in the file. – No sick leave because of a reported problem of this matter.”

A Doctor’s First Report dated May 2, 2000, indicated that the claimant had been treated on April 14^th and May 2^nd. The worker’s history of injury was reported as follows: Increasing forearm pain over the last several months. Works in a kitchen lifting heavy objects. The diagnosis rendered was “bilateral lateral epicondylitis”.

On May 11^th and May 26, 2000, a Workers Compensation Board (WCB) adjudicator contacted the claimant to obtain additional information surrounding the claim including a description of her work duties which she felt contributed to her bilateral arm complaints. In particular, it was noted that the claimant began to develop left arm symptoms in October of 1999. She is right hand dominant. The claimant indicated that she received a flu shot to the left biceps area sometime during the first week of October 1999. There was pain to the biceps area that continued right up until her pain began to move to the outer part of the elbow and down into the wrist and up the biceps. She did not know whether this was related to the flu shot or not. There had been no change in job duties or workload around that time. It was noted that the claimant had not yet reported her left arm difficulties to her employer, but on May 17, 2000, she completed a compensation form for her left arm condition.

The claimant advised that one to two weeks prior to her going on holidays from March 7 to 22, 2000, she slowly started to develop the same symptoms to the right elbow/forearm/biceps. The symptoms in both her right and left arms did not get any better or any worse and she did nothing to aggravate her symptoms while on holidays.

On June 27, 2000, the WCB determined that the claim was not acceptable based on the following factors:

• the claimant advised that her left arm symptoms appeared after receiving a flu shot in October 1999 (in a letter from the treating physician dated June 20, 2000, he stated in part, that he did not feel there was any connection between the claimant’s current symptoms and a side effect from the flu shot). There was no specific accident nor change in job duties or workload to account for her symptoms and the claimant continued to perform her regular duties;

• around late April 2000, the claimant started to develop symptoms in her right arm and as a result a new claim was made up. There was no specific accident nor change in job duties or workload to account for the claimant’s symptoms;

• the claimant’s job duties as a cook did not require that she perform one particular duty repetitively but rather a variety of tasks throughout the course of her shift;

• the employer was not aware of a work related injury and no medical attention was sought until April 14, 2000.

On October 13, 2000, the case was considered by Review Office at the request of a union representative, who had appealed the WCB adjudicator’s decision on June 27, 2000. Review Office was unable to establish support for any contention that the claimant had suffered personal injury due to her duties as a cook or that the bilateral lateral epicondylitis was a condition that arose out of and in the course of her employment. On November 18, 2000, the union representative appealed Review Office’s decision and an oral hearing was held at the Appeal Commission on February 22, 1997.

Following the hearing and discussion of the case, the Appeal Panel requested that the claimant be examined by an independent specialist with respect to her current medical condition. On March 22, 2001, a physical medicine and rehabilitation specialist evaluated the claimant. His examination report bearing the same date was forwarded to the interested parties for comment. On April 24, 2001, the Panel met to render its final decision on the issue under appeal.

Reasons

Section 4(1) of the Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

“Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections.”

In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, “a chance event occasioned by a physical or natural cause; and includes

(a) A wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease and as a result of which a worker is injured.”

As outlined in the background notes, the claimant was seen by her treating physician twice in the spring of 2000 and on each occasion she presented with “persistent bilateral forearm pain of the extensor forearms.” The claimant considered that these symptoms, which began in October of 1999, were as a consequence of her intense pace at work. A diagnosis of bilateral lateral epicondylitis was suggested.

A WCB medical advisor was asked to provide his opinion, whether the claimant’s diagnosed condition could be related to her work duties? In a memorandum to file dated October 17^th, 2000, the medical advisor responded as follows: “I do not think it has been established that the claimant’s elbow pain is work related in view of the fact her symptoms have increased since being off work. The diagnosis and other underlying conditions need to be reconsidered.”

The attending physician outlined his opinion with respect to the claimant’s condition in a letter dated November 29, 2000 to the claimant’s union representative. He stated in part:

“It is likely that Mrs. [the claimant] is suffering with extensor tendonitis secondary to a repetitive strain type injury. She relates in her history no specific event that has caused her present circumstance. Taking into consideration the patient’s age and level of physical condition, it is probable that the activities of stabilizing food, holding bowls, lifting bowls and pots or pans, has resulted in the development of a slow onset, repetitive strain type injury.

It is also probable that the diagnosis of bilateral/lateral epicondylitis is secondary to an extensor group deconditioning syndrome, i.e.: weakness and lack of flexibility throughout the forearm extensor and flexor muscles. Although, I do concur with the orthopedic consultant’s job description of ‘not very strenuous work’, it is possible that a cumulative injury cycle was created and was never provided the appropriate care that was necessary to alleviate it.”

In light of the foregoing commentary, we decided to have the claimant examined by an independent external specialist. The medical advisor to the Office of the Registrar arranged an examination with a physician specializing in physical medicine and rehabilitation. The claimant provided a history of beginning to experience pain over the lateral aspect of the left elbow in or around October 1999. Right lateral elbow pain began in or around March 2000 after returning to work from a vacation. With the exception of over the counter medication, no other treatment recommendations were made and the attending physician performed no investigations.

In arriving at our decision, we attached considerable weight to certain portions of the external specialist’s March 22^nd, 2001 report:

“The location of symptoms and localized tenderness are consistent with lateral epicondylitis. The physical findings suggest that this is of relatively mild severity. While the common extensor insertion was tender, provocative testing was not significant. Range of motion was normal throughout the upper limbs, as was strength. The findings would be consistent with reported localized discomfort during sustained or repetitive wrist extension.

Ms. [the claimant] does not present with illness behaviours nor does she appear to be depressed. However, psychological or social factors related to her workplace may be a factor in her ‘disability’ and difficulty in returning back to the workplace. These issues are not likely the cause of her upper limb symptoms, but may modify her perception of her condition.

Based on the description of her work provided, the initiation of symptoms and greater intensity on the left are confounding factors. The suggested possible complicating issue of an associated median neuropathy discussed above, is proposed as a possible modifying factor, as that diagnosis has not yet even been confirmed. Another confounding factor is the lack of variation in symptoms and absence of any improvement with removal of the suspected offending activity. I am not able to propose an adequate mechanism to account for this.

On balance, based on the history provided and the issues discussed above, it is my opinion that the work-related activities played a medically possible contributing role to the onset of these symptoms. Due to the confounding factors discussed, it is my opinion that the work-related activities are not the sole cause of Ms. [the claimant’s] presentation. It is also due to these factors that I indicate that the relationship is medically possible rather than probable.”

After having considered all of the evidence, we do not find the claim to be acceptable. Accordingly, the claimant’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
E. Krosney, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of May, 2001