The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 9, 2003, at the employer's request. The Panel discussed this appeal on July 9, 2003 and again on September 3, 2003.

Issue

Whether or not the claimant's bilateral osteoarthritic elbow condition is related to his employment.

Decision

That the claimant's bilateral osteoarthritic elbow condition was related to his employment.

Decision: Unanimous

Background

In November 2000, the claimant filed a workers compensation claim for numbness he was experiencing in both his hands and arms. The claimant related these difficulties to his job activities over the years as a shot blast operator which involved the lifting of heavy castings.

On November 13, 2000, the employer questioned whether or not the claim was justifiable. The employer noted that the claimant filed an accident report on November 9, 2000 claiming numbness in his hands and arms. "Until that morning, no report or indication had been given to his supervisor or any other management personnel that he was having problems with his hands and arms."

In order to adjudicate the claim, primary adjudication gathered additional information from the claimant with respect to the onset of his symptoms and the nature of his employment activities. A co-worker was also contacted to ascertain whether or not he was aware of any difficulties experienced by the claimant with regard to his arms and hands. Medical information was obtained from the claimant's treating physicians along with the results of x-rays and nerve conduction studies.

On January 5, 2001, primary adjudication advised the employer that a WCB medical advisor had reviewed the case. The medical advisor was of the view that the claimant's difficulties were consistent with his job duties and that the job duties aggravated a pre-existing condition (i.e. osteoarthritis in both elbows). It was felt that the aggravation should resolve in 4 week's time. The claim therefore met the definition of an accident and wage loss benefits would be paid to the claimant between November 10, 2000 and December 7, 2000. On March 30, 2001, primary adjudication extended the claimant's wage loss benefits to February 1, 2001 inclusive and final.

In further decisions dated February 9, 2001 and March 30, 2001, primary adjudication informed the claimant that it was unable to establish a relationship between the development of his left hand carpal tunnel syndrome, which was noted on nerve conduction studies dated December 12, 2000 and March 6, 2001, to an accident arising out of and in the course of his employment.

On September 28, 2001, a worker advisor appealed the decision rendered on March 30, 2001, arguing that the claimant remained unable to return to work due to a repetitive strain injury sustained from his work activities. The worker advisor disagreed with the WCB's assessment in regard to the compensable diagnosis, noting that there was medical evidence of osteoarthritis along with other more significant conditions affecting the claimant which included bilateral epicondylitis, elbow/ulnar nerve entrapment and left sided CTS.

Prior to considering the above appeal, Review Office attended the work site to assess and videotape the claimant's different job duties in order to understand the demands which were placed on the claimant's wrist/hands. This visit is outlined in a memo to file dated November 13, 2001.

On December 14, 2001, Review Office made the following determinations based on a review of all file documentation which included a report from an occupational health physician, a report by the claimant's treating neurologist, the videotaping of the job site visit and after consulting with a WCB orthopaedic consultant:

• That a compensable loss of earning capacity had not been established beyond that of February 1, 2001;
  
  
• That the WCB did not accept that the claimant's left sided CTS condition was work related; and
  
  
• That the WCB did not accept the claimant's original compensable bilateral elbow condition as anything beyond that of an aggravation of an underlying osteoarthritic condition. Review Office did not deem the osteoarthritic condition as being work related.

Review Office and the WCB's orthopaedic consultant agreed that the jobs videotaped at the claimant's place of employment would not be causal for a left CTS condition or be causal for the claimant's bilateral elbow osteoarthritis. Review Office noted that the claim was accepted on the philosophy of an aggravation of the bilateral elbow osteoarthritic condition and it did not disagree with primary adjudication's position on this matter. Review Office felt that the claimant's absence from work beyond February 1, 2001 was due to a multitude of physical ailments not related to his job activities.

On February 4, 2002, the worker advisor requested Review Office to reconsider its decision of December 18, 2001. Review Office then wrote to the worker advisor on March 5, 2002, indicating that no change would be made to its previous decisions.

In a communication to primary adjudication dated March 26, 2002, the worker advisor requested that a Medical Review Panel (MRP) be conducted in accordance with section 67(4) of The Workers Compensation Act (the Act). The request for a MRP was granted and the MRP took place on November 6, 2002. The MRP results were then referred to Review Office to revisit the issues that it had previously addressed.

On January 17, 2003, Review Office determined the following based on the MRP's findings:

• That the claimant had a compensable loss of earning capacity beyond February 1, 2001;
  
  
• That presently there were no signs or symptoms in either hand that were consistent with a diagnosis of CTS at the time of the MRP and thus there was no need for further discussion on this matter; and
  
  
• That the claimant's bilateral osteoarthritic elbow condition was deemed work related.

Review Office provided the following quote from the MRP's report concerning the claimant's bilateral osteoarthritic elbow condition:

'With regard to the osteoarthritis of the elbows, the medical literature makes mention of the higher incidents of osteoarthritis at the elbow in foundry workers, probably due to transmitted vibration. The Panelists believe that the claimant's work activities were the cause of his unusual osteoarthritic changes in his elbows.'

On February 23, 2003, the employer appealed the Review Office's decision that the claimant's osteoarthritic condition was work related and an oral hearing took place at the Appeal Commission on July 9, 2003.

Following the hearing and discussion of the case, the Appeal Panel asked the employer to provide a chronological history of the claimant's employment activities with the company. The Panel also asked that copies of two medical studies referenced by a physician who assessed the claimant at the Occupational Health Centre be obtained. On July 22, 2003, all interested parties were provided with copies of the information that was obtained by the Panel and were asked to provide comment. On September 3, 2003, the Panel met to render its final decision.

Reasons

This case involves a foundry worker who incurred injuries to both of his elbows, which he attributed to his years of work in the foundry. His claim for compensation was accepted and benefits paid for a few months - from November 10, 2000 to February 1, 2001.

His first and second requests for reconsideration by the Review Office were unsuccessful, with Review Office holding that he had no loss of earning capacity beyond February 1, 2001; that his carpal tunnel syndrome was not causally related to his work; and that the osteoarthritis in both elbows was also not work related.

Following the report of a Medical Review Panel, his third request for reconsideration was successful on the first and third of the issues noted above. The employer appealed that decision to the Appeal Commission.

There was only one issue before the Appeal Panel: whether or not the osteoarthritis was work related.

For the employer's appeal to be successful, the Appeal Panel would have to determine that his bilateral osteoarthritis in his elbows did not arise out of and in the course of his employment. We did not come to that conclusion.

In coming to our conclusion, we conducted a thorough review of the claim file, as well as holding a hearing, at which we heard testimony from the claimant, his advocate, the employer and its legal counsel. Subsequent to the hearing, we sought further information, specifically: from the employer, a record of his job assignments over the years; and, from one of his treating physicians, two articles referenced in the file, but not included.

Before considering the arguments made to the panel, it is worth repeating a bit of the history of this case.

The claim was accepted in December 2000 on the basis that it constituted an aggravation of a pre-existing arthritic condition in his elbows. Initially, benefits were to be paid to December 7, 2000. This was later extended to February 1, 2001. A reconsideration by Review Office, in December 2001, held that there was no loss of earning capacity beyond February 2001; and that the injury was no more than an aggravation of an underlying condition. (It also considered an issue in respect of carpal tunnel syndrome, but that is not part of this appeal.)

Subsequent to an examination by a Medical Review Panel (MRP), Review Office, in January 2003, reversed its decision on both of the issues noted above. The employer appealed one of those issues to this commission.

At the appeal hearing, counsel for the employer/appellant argued that the MRP had based its decision on inaccurate and incomplete information. She submitted that the MRP's understanding of the claimant's work duties was not correct. She argued that "there's only a speculative possibility, when you look at all the information before you, that the claimant's employment may have caused his osteoarthritic condition in his elbows." She further argued that "that isn't sufficient to satisfy the dominant cause test required for an occupational disease."

That last point is the basis of a second argument on her part, that we adjudicate the claimant's injury on the basis of 'occupational disease.' His condition, she argued, "is more properly described as a disease of life … that may have been aggravated by his employment, but his employment didn't cause it."

Without oversimplifying her argument, it was her position that the MRP based its conclusion on the claimant having spent many years working with vibratory tools, which had been reported in medical journals to be a cause of elbow problems in foundry workers. In support of her argument, she presented considerable evidence to the effect that the claimant did not work, all that much, with vibratory tools.

She also noted that other workers in the plant did jobs similar to those of the claimant, often for considerably longer periods of time, and did not come down with any injuries like those incurred by the claimant. On that specific point, the claimant's advocate rebutted that "comparison to others is not valid when we're adjudicating compensation claims … the board recognizes … [that] one person may respond in a different way than another." In this regard, we conclude that the position of the claimant's advocate is correct.

The employer's counsel further noted that osteoarthritis is a disease common to many people, occurring frequently after the age of forty. It was her contention that the dominant cause of the claimant's osteoarthritis was this 'disease of life', not his work duties.

In responding to the principal argument of the appellant, the claimant's advocate argued that the claimant's elbow problems did arise out of and in the course of his employment. She found support for this position in the claim file, specifically in reports of treating physicians, as well as descriptions of the duties performed by the claimant. She also had the claimant describe to us some of his job duties.

It is our conclusion that the claimant's osteoarthritis in both elbows is causally related to his employment in the steel plant. We also conclude that this is not an occupational disease, as defined in the Act.

In considering the second point, we note that the Act provides as follows:

"occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions

(a) peculiar to or characteristic of a particular trade or occupation; or

(b) peculiar to the particular employment;

but does not include

(c) an ordinary disease of life; …

Cause of occupational disease

Where an injury consists of an occupational disease that is, in the opinion of the board, due in part to the employment of the worker and in part to a cause or causes other than the employment, the board may determine that the injury is the result of an accident arising out of and in the course of employment only where, in its opinion, the employment is the dominant cause of the occupational disease.

Board Policy 44.20 further defines some of the relevant terms:

"peculiar to or characteristic of a particular trade or occupation"

A disease will be described as being peculiar to or characteristic of a particular trade, work process, or occupation if there is a preponderance of scientific evidence to support a conclusion that the nature of the work processes or environment have significantly increased the likelihood of causing a particular disease in the workers who work in that trade or occupation.

"peculiar to the particular employment"

A disease will be described as being peculiar to the particular employment if:

1. there are factors identifiable in that workplace that are known to cause the disease, or
   
   
2. there is scientific evidence acceptable to the WCB that the particular workplace is the cause of a significantly increased risk of the disease even though the cause has not been identified, or
   
   
3. a factor can be identified at the workplace as being the proximate cause of the disease.

We do not accept that this is a case of occupational disease. While there is medical evidence which strongly links osetoarthritic elbows to use of vibratory tools among foundry workers, we are of the view that this does not meet the definitions set out above. (Examples of occupational diseases are mesothelioma among asbestos workers or certain cancers among firefighters.)

In considering whether or not the claimant's ongoing problems with osteoarthritis are related to his employment, we looked at a number of factors. In respect of whether or not his osteoarthritis was pre-existing, we took particular note of the following:

• The claim was originally accepted as compensable, as an aggravation of pre-existing osteoarthritis in his elbows.
  
  
• He was examined by a neurologist in November 2001, who noted there was no family history of degenerative osteoarthropathy.
  
  
• In October 2001, a specialist in occupational health reported that the claimant had osteoarthritis only in his elbows (and in areas affected by an earlier car accident). There was no generalized osteoarthritis condition. From this, he concluded that "the osteoarthritis in his elbows was much more likely to have risen due to his work."
  
  
• The MRP concluded that his osteoarthritis was caused by his employment, rejecting that it was an aggravation or enhancement of a pre-existing condition.

We are of the view that the preponderance of evidence supports a conclusion that the claimant's osteoarthritis was not a pre-existing condition.

In considering whether or not his job duties could reasonably be the cause of his condition, we looked at the following:

• The occupational health doctor noted that "possible mechanisms [for his injury] include use of vibratory tools in combination with strong dynamic and static joint loading through repetitive arm motions."
  
  
• Counsel for the employer argued that this was not reasonable, as the amount of time working with vibratory tools was only a small part of the claimant's job duties. We accept that argument, but looked to his other jobs tasks, as well.
  
  
• The claimant described his job duties, both to the MRP and the Appeal Panel, as including:
  
  
  • Frequently pushing and pulling heavy weights, in the form of large metal castings and trolleys loaded with such castings.
  • Using a heavy grate bar or sledgehammer to break metal sludge off of the castings.
  • Operating a cut-off grinder.
  • Working as a shot-blast operator, which often involved using a high pressure hose that shoots out tiny metal balls to blast the castings clean. This hose would place particular stress on his arms and shoulders.

• The claimant performed these tasks for more than thirty years with the accident employer.
  
  
• The employer was in general agreement with this description of the job duties.
  
  
• Medical journal articles, provided to the Panel subsequent to the hearing, noted that other stressors, besides vibratory tools, can lead to osteoarthritis in the elbows of foundry workers.
  
  
• The MRP believed that "40 years (sic) of heavy work activity, stressful to the elbows, was the etiology of this worker's osteoarthritis of the elbows."

From our analysis of the foregoing evidence, we conclude that the claimant's work duties did cause his current elbow condition. As noted earlier, we do not consider this to be an occupational disease. Nor, was it the result of a single traumatic event. Rather, it is the result of cumulative micro-traumas, brought on by many years of working in jobs which placed stresses on his arms.

Finally, we looked at his current diagnosis.

• In October 2001, the occupational health doctor diagnosed the claimant as having "osteoarthritis of the elbows secondary to his work in the foundry. This has led to bilateral ulnar neuropathies which are the cause of his symptoms. … his work is the underlying cause of his problem and not an exacerbating factor."
  
  
• The MRP corroborated this, finding the diagnoses to be:
  
  
  • Bilateral ulnar neuropathy, right more than left; and
  • Bilateral osteoarthritis of the elbows.

• The MRP noted that complaints of ulnar neuropathy dated to, at least, November 2000. It further noted that such "complaints are clearly increased by the bony changes at the elbow …"
  
  
• The MRP agreed "that the condition should be considered to be permanent."
  
  
• The MRP stated that the claimant would have permanent restrictions against heavy lifting, repetitive activities and much pushing or pulling.
  
  
• Finally, the MRP expressed its belief that both the osteoarthritis and the ulnar neuropathy would progress further.

From this, we conclude that the claimant's bilateral osteoarthritis continues to be a limiting factor in his ability to perform his pre-accident work duties.

In conclusion, we would note again that this is an appeal by the employer asking us to find that the claimant's ongoing osteoarthritis is not causally related to his employment. Our analysis of the evidence presented to us leads us to the opposite conclusion.

Accordingly, the employer's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 7th day of October, 2003