Decision #83/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on June 13, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on June 13, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In February 2001, the claimant filed a claim for compensation benefits indicating that her left wrist cyst was caused from continuous wrist movements over a period of time during her employment activities as a seamstress.

On April 5, 2001, a Workers Compensation Board (WCB) adjudicator contacted the claimant by phone and the following information was obtained:
  • the claimant is right hand dominant. She used her left arm more to perform a lot of tasks.

  • the claimant had been employed as a seamstress for approximately 3 years. Her job duties included mending, patching and sewing with a sewing machine. Her left hand is always bent and she constantly grips material to pull through with the left hand. The right hand moves the controls on the machine. There is a lot of lifting done with both hands. The claimant used her left hand to stamp (i.e. 4000 items need to be stamped within a couple of days.) She also counts inventory, i.e. lifts with left hand and counts and writes with the right hand. The claimant carries bags of linen with both hands to sewing area and uses her left hand to bring the bags up to the sewing machine.

  • the onset of her problems started around June 2000 when she felt a pain and lump on her wrist where the wrist bends closer to her thumb.

  • the claimant performed no extra curricular activities, no crafts, sports, etc.
Medical information confirmed that the claimant had a ganglion on the dorsal aspect of her left wrist. On February 27, 2001, surgery was performed to remove the ganglion.

On April 5, 2001, a WCB medical advisor was asked by primary adjudication to review the file and to provide opinions as to the causes of ganglions and whether the claimant's ganglion and surgery were as a result of her work duties.

In a decision dated April 11, 2001, primary adjudication advised the claimant that a WCB medical advisor had reviewed her claim. The opinion provided by the medical advisor stated that the ganglion and resulting surgery would not be related to her job duties as these tasks were neither highly repetitive nor strenuous. The generally accepted causes of ganglions were trauma, degeneration and repetitive movement against resistance. After considering Section 4(1) and 1(1) of The Workers Compensation Act (the Act), primary adjudication was unable to establish that an accident as described by the Act had occurred while in the workplace.

On May 14, 2001, the claimant's physician wrote to the WCB adjudicator stating the following:
    "It is well recognized that ganglions usually develop spontaneously but I think it is also fair to give the worker the benefit of the doubt in dealing with a controversial matter like this. Ms. [the claimant] is a seamstress and her job duties are definitely highly repetitive and strenuous. I would appreciate it if your medical advisor would reconsider this whole issue and perhaps accept the claim for compensation."
On May 18, 2001, a WCB medical advisor was requested to comment on the new medical information. On May 22, 2001, the WCB medical advisor indicated that he had reviewed the claimant's job description again and it was still his opinion that the claimant's work was neither very repetitive nor strenuous. On June 26, 2001, primary adjudication advised the claimant that no change would be made to its original decision, i.e. that the claim was not acceptable. On September 27, 2001, the claimant appealed the decision to Review Office.

On January 4, 2002, Review Office considered the case, which included a written job description by the claimant, which outlined her job duties as a seamstress. These duties were confirmed by the claimant's supervisor. Review Office also considered the following opinion expressed by a WCB orthopaedic consultant on January 3, 2002:
  1. The claimant has a reported ganglion on the dorsal aspect of the left wrist which can arise either from the joint or overlying tendons. It may or may not be symptomatic.

  2. More likely to have arisen spontaneously but certain activities either at work or elsewhere may cause it to be symptomatic.
Review Office noted that although the position of a seamstress may be repetitive in some aspects, it was not repetitive to the extent that it involved the wrist such that a ganglion would be formed. Review Office concluded that the weight of medical opinion would support that the development of the claimant's ganglion was more likely to have arisen spontaneously as there was no evidence of any work related trauma. Review Office determined that the claim for compensation was not acceptable. On February 24, 2002, the claimant appealed Review Office's decision and an oral hearing was then arranged.

Reasons

Section 4 (1) of the Workers Compensation Act (the Act) provides for 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 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. An accident is defined as,
    "a chance event occasioned by a physical or natural cause; and includes
    1. a wilful and intentional act that is not the act of the worker,
    2. any
      1. event arising out of and in the course of, employment, or
      2. thing that is done and the doing of which arises out of, and in the course of, employment, and
    3. an occupation disease
    and as a result of which a worker is injured."
The claimant was diagnosed as having a ganglion on the dorsal aspect of her left wrist. WCB policy 44.10.20.20 deals specifically with ganglia. "The Board will accept a claim for a medically diagnosed ganglion where it is probable that the condition was caused or aggravated by an accident arising out of and in the course of employment. Where there is a medical diagnosis of a ganglion, the following shall be used as criteria for acceptance: 1. A history of prolonged, highly repetitive movement of the area affected, usually the wrist, particularly if a weight is involved; or 3. Medical opinion indicates that the ganglion is a result of work-related activity or injury."

There is on file a memorandum dated April 5th, 2001 wherein a WCB medical advisor outlines the accepted causes of a ganglion as being trauma, degeneration and repetitive movement against resistance. He further goes on to state that in his opinion the claimant's work activities are neither 'highly repetitive' nor 'strenuous'.

We accept the claimant's evidence that for the past several years her job duties also included ripping rags by hand out of worn towels and bed sheets. In addition, we note that this fact was not included in the claimant's job description, which was provided to the WCB medical advisor.

Also on file there is a January 3rd, 2002 memorandum prepared by an orthopaedic consultant to the WCB. He suggests that the claimant's ganglion more than likely arose spontaneously, but he does acknowledge, however, that "certain activities either at work or elsewhere may cause it to be symptomatic". Again, he was not privy to the fact that the claimant's job duties included ripping rags.

We find that the claimant's ganglion was, on a balance of probabilities, caused or aggravated by an accident arising out of and in the course of her employment. The ripping of rags aspect of the claimant's job duties is in our view both highly repetitive and strenuous. The claim together with the evidence satisfies the criteria set out in WCB 44.10.20.20 and therefore is acceptable.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 4th day of July, 2002

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