The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 4, 2001, at the request of the claimant. The Panel discussed this appeal on June 4, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

In November 2000, the claimant submitted an application for compensation benefits with respect to injuries to both arms which he related to his work activities as a labourer.

In a letter attached with the application for benefits, the claimant indicated that he was employed with the accident employer from May 9, 1999 to October 22, 1999. During the first three months of his employment, he was working in the casement-awning department and the remainder was spent working in the office until he was relieved of his responsibilities on October 18, 1999. In late 1999 he began to experience pain in his arms especially when he was lifting something down from a shelf. As the pain would not pass, the claimant indicated he sought medical treatment on January 17, 2000 and was told he had tennis elbow. The claimant believed that the root of his problem was due to the overuse of his muscles.

Initial medical information confirmed that the claimant was diagnosed with bilateral tennis elbow/forearm condition and was referred for physiotherapy treatments. On the initial physiotherapy report dated April 27, 2000, it stated, "Pt. presently seeking employment. Advised not to get repetitive assembly line type work considering jobs of that nature often cause/aggravate this type of injury."

On May 8, 2000, the claimant was notified that his claim for compensation was denied as it could not be established that an injury occurred at work. The decision was based on Sections 4(1) and 17(5) of the Workers Compensation Act (the Act) along with the following factors:

• between May 1999 to August 1999 the claimant's job entailed "dropping windows". The job required the repetitive use of both hands and arms. The claimant occasionally experienced symptoms in his fingers. He did not report anything to his employer and the symptoms usually disappeared after showering in the morning.
• from August 1999 to October 1999, the claimant worked in the office performing a sales job. There was no repetitive use of his hands or arms and he did not experience any symptoms in his arms.
• the claimant left the employ of the accident employer in October 1999 and had not worked anywhere else since. In October or early November 1999, he began to notice pain in his arms. He was not sure why the symptoms began around this time but felt they may be related to his previous job dropping windows.

On July 6, 2000, the claimant appealed the above decision to Review Office. Attached with his submission was a report from the attending physician dated June 5, 2000. The physician stated that the claimant was seen on January 17, 2000 and again on March 9, 2000, for what seemed to be lateral epicondylitis. The physician stated that the claimant related his pain to the work that he performed between May of 1999 and August of 1999.

Prior to considering the claimant's appeal, the accident employer provided Review Office with a letter that the firm received from the claimant dated October 22, 1999. The claimant indicated that he was not able to go back to his previous job in the awning/casement department, because he developed a cough and a rash that he didn't have before he started. In a matter of weeks these symptoms disappeared when he was transferred out of that work environment. The claimant indicated that he had an appointment with a surgeon to have an operation on his leg and that this problem was brought on while working in the plant. The claimant further stated "I am suffering from the effects of being under an unhealthy stress load while under your supervision, which I will document, as I am preparing to grieve this wrongful dismissal. I am currently seeking medical attention, so I am currently not available for work."

On July 28, 2000, Review Office confirmed that the claim for compensation was not acceptable. Review Office found it difficult to reconcile that the claimant's claimed elbow pain in late 1999 to work that he had not performed since August of 1999. There was no continuity of symptoms from the beginning of the claim to the end such that the work performed months previously could be seen to be the cause of the worker's elbow problems.

In addition, Review Office noted that the claimant did not report arm or elbow difficulties to his employer prior to leaving the company's employment despite having ample opportunity to do so. Review Office found it odd that the worker failed to mention his arm/elbow problems in the letter he submitted to the company on October 22, 1999. On October 13, 2000, the claimant appealed Review Office's decision.

Reasons

This is the case of a worker who suffered bilateral lateral epicondylitis, more commonly known as tennis elbow. He alleges that the injury was the result of his work manufacturing windows.

The WCB adjudicator assigned to this case found there to be no causal link between his injuries and his work. This decision was upheld by the Review Office. It is from the latter decision that he appeals to this Commission.

Pursuant to section 4(1) of The Workers Compensation Act, a worker is entitled to be paid wage loss benefits where the injury suffered arises out of and in the course of employment.

For the claimant to succeed in this appeal, the panel must determine that the claimant's injuries to his elbows were a result of the nature of the work he performed in window manufacturing.

We were unable to come to that determination.

The worker commenced work with the accident employer in May 1999. His work involved installing glass panes into window frames and pressing them into the frame to ensure a proper seal. The claimant reported to the board that, while doing this, he would often experience pain in his fingers when he awoke in the morning, but that this pain quickly subsided and did not bother him while at work. He never reported this to anyone in the workplace.

After about 2 1/2 months in this job, he was transferred to an office position. He no longer experienced any pains to his fingers. A month and a half later, in October 1999, he was transferred back to the plant. He chose to resign his position with the firm.

In his letter of resignation, he mentioned that working in the plant had caused a rash and cough. (This was the first time he had reported this.) He further noted that he would soon be undergoing surgery to his leg. He made no mention of any problems with his elbows or forearms. In his testimony before the panel, the claimant could not remember the date of his operation (which was for varicose veins), but believed it was shortly after he quit working. For a few weeks after the operation, he walked with crutches and, then, with a cane.

To the best of the claimant's memory, the pains in his elbows began after he terminated his employment. In an interview with the adjudicator on May 5, 2000, the claimant advised that he started noticing pain in both arms in late October or early November 1999.

In coming to our decision, we carefully reviewed the worker's WCB file and heard his testimony at an oral hearing. We were unable to find any evidence, at all, which would support a causal link between his work and the injuries to his elbows.

We accept that he did have pains in his fingers while working in the plant. But, by his own testimony, he suffered no loss of earning capacity as a result. And, also by his own admission, these pains went away almost immediately after he left the plant for the office job, and have not resurfaced.

The elbow problems did not arise until after he left the employ of the firm. Therefore, we conclude that, on a balance of probabilities, the injuries did not arise out of and in the course of employment.

Accordingly, we uphold the decision of the Review Office and dismiss the appeal.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of June, 2001