The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 16, 2003, at the employer's request. The Panel discussed this appeal on January 16, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In August 2002, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report difficulties that he was experiencing with both of his arms, which he attributed to the nature of his employment activities as a paramedic. The date of accident was recorded as August 21, 2002. The claimant described his injury to the call centre as follows:

I have been diagnosed with bilateral tendinitis (tennis elbow). Just recently my right arm has been giving me more trouble. My left arm does bother me as well but not as much as my right. I have trouble picking things up with my right arm. So due to this I decided to see a doctor and was told it is from lifting the stretchers and carrying people in my job. It is a build up over a period of time. I started physiotherapy today August 22^nd.

The Employer's Report for this claim stated the following:

Employee states that he has weakness in both forearms and alleges that this is a result of his duties as a paramedic. The employee was non-specific as to time/date of his injury and has not reported any other related injury in recent history.

On August 21, 2002, a report from the attending physician diagnosed the claimant with bilateral lateral epicondylitis. Physiotherapy and a brace were the recommended forms of treatment.

Upon speaking with a WCB adjudicator on August 23, 2002, the claimant indicated that he had been a paramedic for 25 years. He did not have any prior problems with his elbows. He was right handed. About a week prior, the claimant's arm became weak and he was having trouble lifting things. The claimant could not remember a specific trauma. The claimant denied any changes to his workload or duties prior to the onset of his symptoms.

On September 6, 2002, it was determined by primary adjudication that the claim was not acceptable. Based on Sections 4(1) and 1(1) of The Workers Compensation Act (the Act), it could not be established that the claimant had suffered a personal injury due to an accident arising 'out of and in the course' of his employment.

In a letter to Review Office dated September 13, 2002, the claimant appealed the WCB's decision to deny his claim. As the letter contained additional information that had not previously been provided to primary adjudication, a WCB adjudicator spoke with the claimant on September 17, 2002. The claimant indicated the following:

• he had been on holidays for 28 days prior to August 6, 2002.
  
  
• after his holidays, the claimant was assigned to a particular station which handled airport calls. Prior to his holidays he was at another station which also handled airport calls. The claimant would get 3-4 airport calls per day.
  
  
• the aircraft have drop down stairs with guide wires attached to them. A stretcher is lowered off of the plane onto a slider by two airplane attendants. The claimant and his partner would then have to lift the stretcher off of the slider and onto their trolley. Because of the guide wires, a person can only use one arm to lift the stretcher.

The above information was also provided to the employer for comment. In a response dated September 18, 2002, the employer stated the following:

• the claimant ended his last shift prior to his vacation on July 9, 2002 and returned to work on August 6, 2002.
  
  
• the claimant was on vacation for the first tour of 2002 and returned to work on January 10, 2002. He went off on vacation on May 14, 2002 and returned to work at a particular station on May 26, 2002 and had been at this station since May.
  
  
• 99% of northern transports have a ramp extending out from the aircraft that alleviates the need to enter and reach up to lift the stretcher down from the aircraft. The ramp lowers the patient's stretcher down to the level of the ambulance stretcher, thus allowing the crew to slide the aircraft stretcher onto the ambulance stretcher.
  
  
• employees no longer have to reach around support wires that hold the aircraft doors open. In the unlikely event that an aircraft did not have a ramp, at least one of the wires were capable of being unclipped to allow the stretcher to come out.

In a letter to the WCB adjudicator dated September 12, 2002, the attending physician noted that the claimant's occupation required him, from time to time, to carry very heavy patients in awkward situations such as stairs and narrow doorways, etc. The claimant's condition started gradually and had become worse. The physician asked the adjudicator to explain in medical terms exactly why the claimant's condition could not possibly be caused by his work duties.

On September 19, 2002, the claimant was advised by primary adjudication that his employer had been contacted to confirm the number of airport calls that he undertook and that he was only able to use one arm while lifting the stretchers. As the information provided by the employer did not confirm the claimant's information, the adjudicator indicated that no change would be made to his earlier decision. The claimant appealed the decision denying his claim to Review Office.

Prior to considering the claimant's appeal and a submission forwarded by the employer dated October 16, 2002, Review Office asked that a WCB orthopaedic specialist provide his opinion with respect to the generally accepted causes of bilateral epicondylitis. The orthopaedic consultant responded on October 22, 2002.

The Review Office also noted a conversation with the orthopaedic consultant concerning the specific movements that are involved when lifting patients onto stretchers and lifting stretchers. The consultant said these maneuvers could be causal of the problem.

In a decision dated October 25, 2002, Review Office determined that the claim was acceptable. Review Office noted the argument put forth by both the claimant and his physician that the general duties of a paramedic were the cause for the claimant's bilateral tennis elbow condition. Review Office also noted the opinion expressed by the WCB orthopaedic consultant that the activities such as those performed by the claimant could account for the micro traumas involving the extensor aponeurosis that led to the diagnosis. Review Office ruled therefore that the claim qualified as a personal injury caused by an accident that arose out of and in the course of the worker's employment. On October 31, 2002, the employer appealed Review Office's decision and an oral hearing was convened.

On January 16, 2003, an Appeal Panel hearing was conducted. Following the hearing, the Panel requested an up-to-date report be obtained from the claimant's attending physician, prior to discussing the case further. A response from this physician was later received dated January 30, 2003 and was forwarded to the interested parties for comment. A submission was received from the employer dated February 17, 2003. On March 4, 2003, the Panel met again to discuss the case.

Reasons

Section 4(1) of 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

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 occupational disease

and as a result of which a worker is injured."

As the background notes indicate, the claimant works as a paramedic. The attending physician advanced the argument that the duties of a paramedic were the cause of the claimant’s developing bilateral lateral epicondylitis. In rebuttal, the employer’s representative put forward the following reasoning:

“Specifically, Mr. [the claimant] has been employed as a paramedic for the past 25 years with no significant change in duties and has never reported similar problems to his employer. If his duties, as a paramedic, were truly the cause of Mr. [the claimant’s] current problems, we suggest that this would have become evident at some point during his previous 25 years in this capacity. Add to this that the [employer] employs anywhere from 180 to 190 paramedics and this problem, to my knowledge, has not presented itself prior to this incident with Mr. [the claimant]. The most prevalent injury arising from this vocation is back injuries due to lifting heavy weights and/or in awkward situations.”

A WCB orthopaedic consultant acknowledged that the specific movements of lifting patients onto stretchers and the lifting of stretchers could be causal of lateral epicondylitis. In addition, he recorded the following comments in a memorandum to file dated October 22^nd, 2002.

“The exact etiology of lateral epicondylitis remains controversial. It may occur acutely due to trauma or may be chronic on a degenerative basis (tendinosis). The symptoms appear to arise because of micro-trauma or degeneration involving the extensor aponeurosis. Repetitive pronation-supination movements of the forearm or flexion-extension of the elbow are usually implicated as well as any activities of the hand, wrist & forearm that place the extensor muscle origin (aponeurosis) under stress (e.g. tennis, ball throwing [more commonly medial]; lifting weights, hammering etc.)”

After having considered all of the evidence as well as the arguments presented by the parties hereto, we find, on a balance of probabilities that the claimant’s bilateral lateral epicondylitis arose out of and in the course of his employment. The claimant sustained an accident as defined by the Act and therefore his claim is acceptable. Accordingly, the employer’s appeal is hereby dismissed.

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 12th day of March, 2003