Decision #07/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on December 10, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on December 10, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

In May 2002, the claimant contacted the call center at the Workers Compensation Board (WCB) to report left hand, wrist, thumb and neck difficulties which he related to the repetitive nature of his work activities. The date of accident was reported as being November 5, 2001.

On May 15, 2002, the employer’s representative questioned the validity of the claim. The representative noted that a manager was aware that the claimant was experiencing problems but at no time did the claimant state that it was work related. When the claimant went off work in November 2001, he filed a group insurance claim with the company’s disability carrier. The employer’s representative asserted that the claimant’s pre-existing degenerative condition may be responsible for his being unable to work.

In a report to the family physician dated May 7, 2002, a sports medicine specialist indicated that the claimant had some concerns with respect to the area of his left carpal metacarpal joint. The specialist noted that x-rays revealed fairly severe degenerative changes at the first carpal metacarpal joint of the left thumb. The diagnosis rendered was a severe carpal metacarpal arthropathy of the left thumb with metacarpal subluxation. Treatment included a particular brace which was expected to help decrease the claimant’s symptoms resulting from daily activity. The specialist stated, on a balance of probabilities, that the claimant will have ongoing difficulty performing the repetitive activities in the workplace and that he should consider alternate forms of employment.

On June 25, 2002, primary adjudication advised the claimant that his claim for compensation had been denied. Primary adjudication was of the view that the evidence did not establish a relationship between the development of the claimant’s symptoms and an accident arising out of and in the course of his employment.

In August 2002, the claimant’s union representative submitted a report prepared by a sports medicine specialist dated July 31, 2002, which the union representative believed supported a causal relationship between the claimant’s diagnosed condition(s) and the performance of his work duties.

In his report of July 31, 2002, the specialist commented that the cause of the claimant’s joint disruption was repetitive loading, which the claimant would have had from his occupational exposure. The specialist stated: “Therefore, in my opinion, on the balance of probability, with a reasonable degree of medical certainty, Mr. [the claimant’s] carpal-metacarpal arthropathy bears a cause/effect relationship to the workplace exposure.”

On August 14, 2002, a WCB adjudicator advised all parties that the new information did not change the original decision of June 25, 2002 and that the case would be referred to Review Office for further handling.

On September 17, 2002, a WCB orthopaedic consultant was asked by Review Office to review the report of July 31, 2002 and to comment on whether or not he agreed with the specialist’s opinion that the claimant’s work caused a severe carpal-metacarpal arthropathy. In response to this request, the orthopaedic consultant stated the following:

“The claimant has degenerative arthritis of multiple joints involving the left thumb (IP, MP, and MC joints) – this is the arthropathy. It has not been established that this developed due to his work activity. The work activities, however, might cause the condition to be symptomatic depending upon its nature as would other non-work related activities.”

In a decision dated September 20, 2002, Review Office confirmed that the claim was not acceptable. Review Office concurred with the opinion expressed by the WCB’s orthopaedic consultant that the claimant’s work activities did not cause his severe degenerative arthritis of the three joints in his left thumb. Review Office further believed that the claimant’s condition was not work related as it would have improved with the claimant’s absence from work, which it did not. Review Office concluded that the claimant’s problems were attributed to his non-compensable degenerative arthritis of the left thumb. On October 24, 2002, Review Office’s decision was appealed by the claimant’s union representative and an oral hearing was convened.

Reasons

Chairperson MacNeil and Commissioner Day:

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 keeping 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

(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.”

X-rays taken of the claimant’s left thumb on December 27th, 2001 revealed fairly severe degenerative changes at the first carpal metacarpal joint of the left thumb as well as degenerative changes of the interphalangeal and metacarpal phalangeal joint. Additionally, the claimant also exhibited on x-ray severe degenerative changes in his cervical spine from C4 to C7. We find based on the weight of evidence that the claimant’s degenerative arthritis or arthropathy developed, on a balance of probabilities, prior to his compensable injury of November 5th, 2001. In other words, we find his severe carpal metacarpal arthropathy to be a pre-existing condition.

A WCB orthopaedic consultant reviewed the claimant’s file on September 17th, 2002 and recorded the following comments in a memorandum to file:

“The claimant has degenerative arthritis of multiple joints involving the left thumb (IP, MP, & MC joints) – this is the arthropathy. It has not been established that this developed due to his work activity. The work activities however might cause the condition to be symptomatic depending upon its nature as would other non-work related activities.” (Emphasis ours)

The claimant testified at the hearing that he has not been involved in any outside activities, which would cause problems to his left-hand thumb. We find in accordance with the evidence that the claimant’s work duties involving his left thumb being in opposition to the other digits resulted, on a balance of probabilities, in his pre-existing condition to become symptomatic. The claimant sustained an accident arising out of and in the course of his employment that resulted in personal injury. Therefore, the claim is acceptable and the appeal is hereby allowed.

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 21st day of January, 2003

Commissioner's Dissent

Commissioner Finkel’s Dissent:

This case involves a worker who claims that he sustained an injury to his left thumb on November 5, 2001, while employed as a cashier in a large retail store. The worker initiated his claim with the Workers Compensation Board in May 2002, The worker left work on November 8, 2002, and went on group disability benefits. He did not report to his employer that his injuries arose out of his work duties, either while on the job or during his absence. A WCB adjudicator denied his claim, and this decision was upheld by the Review Office, who noted the severe degenerative changes in the claimant’s left thumb/wrist area and the support by his attending physicians for his claim for disability benefits

The worker has appealed this decision to the Appeal Commission. For the worker to be successful in his appeal, we would have to find, on a balance of probabilities, that there was a workplace accident, as defined under Sections 1(1) and 4(1) of The Workers Compensation Act (the Act). I was unable to come to this conclusion.

In reviewing the medical information on the file, an x-ray report dated December 28, 2001 notes as follows:

“LEFT THUMB: Degenerative changes of the interphalangeal and M.P. joint are seen. There is also noted to be rather severe degenerative changes of the first carpal metacarpal joint. No fracture or other abnormality is seen.

LEFT WRIST: Besides changes of the first carpal metacarpal, no other significant degenerative changes or other bone or joint abnormality can be identified.”

At issue is whether these degenerative changes were caused by the claimant’s job duties, or aggravated or enhanced by the job duties.

The claimant’s evidence is that he had symptoms in his wrist in a four or five year period preceding this claim. He did take days off on occasion, but had never filed a claim with WCB for those days. He also indicated that he was a part-time employee with some fluctuations in the number of hours worked per week. The claimant usually worked at express checkouts (70-75% of time), which was easier than regular cashier duties. There were no changes in work loads or duties in the period immediately preceding November 5, 2001. There also was no specific event on that day that triggered pain in his left hand.

I place particular weight on what transpired in the period following his layoff. His attending physicians knew of his cashier job, yet immediately supported his claim for short term disability, rather than initiating a claim with the WCB. The claimant similarly did not file a claim with his employer, and applied for short term disability. At no point during that benefit period did the issue of work-relatedness arise.

The first physician to point to a work-related cause was a sports medicine physician, who first saw the claimant in May 7, 2002, after a referral by his attending physician. This examination took place coincidentally around the time of the termination of his short term disability benefits. In his report dated July 31, 2002, the physician diagnoses a severe carpal-metacarpal arthropathy of the left thumb, with some metacarpal subluxation in that area. He acknowledges that joint disruption typically occurs with a ligament disruption to the stabilizing disruptions (some sort of trauma) that did not occur in the claimant’s case. He states that the next most common cause for a degenerative condition would be repetitive loading which he would have from his occupational exposure.

I have difficulty placing weight on this assertion; Firstly, the absence of scientific support for such a conclusion, and secondly, the claimant has three sites of degenerative arthritis in the thumb, as noted in the x-ray results. The claimant also has similar degenerative problems in other parts of his body, (in particular the cervical spine). The physician points to a causal relationship for one of the three sites in the thumb, and does not provide an explanation for the other two sites. This diminishes the value I can place on that opinion, and leads me to favour the conclusions drawn by the claimant’s attending physicians and the WCB orthopaedic consultant. The presence of multiple sites is far more suggestive of a long term disease process that is non-work-related. I prefer the analysis provided by the WCB orthopaedic consultant on September 17, 2002, who states:

“The claimant has degenerative arthritis of multiple joints involving the left thumb (IP, MP, and MC joints) – this is the arthropathy. It has not been established that this developed due to his work activity. The work activities however, might cause the condition to be symptomatic depending on its nature as would other non-work related activities.”

As such, I find on a balance of probabilities, that the degenerative arthritis was not caused by the claimant’s job duties, but rather was a pre-existing non-compensable medical condition.

As to the presence of a workplace aggravation of a pre-existing condition, I note that the claimant’s arthritis is considered to be very severe in nature, and in fact the claimant’s symptoms or function had not improved in the year that the claimant was away from the job. The claimant notes that he can now function with a brace. However, when he is not wearing the brace, he can suffer onset of pain easily. It is apparent that the claimant’s thumb can readily become symptomatic while he is at work, or indeed while undertaking many of the activities of daily living. This does not, however, equate to an aggravation that meets the definition of a workplace accident under the Act. Again, these circumstances and the systemic nature of the medical condition were known to the claimant’s attending physicians, who chose to support a non-work-related cause in the application for short term disability benefits.

For these reasons, I find on a balance of probabilities that there was no accident, as defined by Sections 1(1) and 4(1) of the Act. Accordingly, I would deny the claimant’s appeal.

A. Finkel, Commissioner

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