The Appeal CommissionThe Workers Compensation Act of Manitoba

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 27^th, 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 5^th, 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 17^th, 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