Decision #18/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on July 3, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being December 17, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In December 2000, the claim filed an application for compensation benefits indicating that the repetitive nature of his job duties between September 1993 and August 1999 caused him to develop numbness and soreness in his left hand. Medical information on file confirmed a diagnosis of left ulnar neuropathy at the left elbow.

In order to adjudicate the claim, primary adjudication contacted both the claimant and his employer to gather additional information concerning the claimant's work history, the onset of his symptoms and specifics with respect to the reporting of his injury. Primary adjudication also consulted with the healthcare branch at the Workers Compensation Board (WCB) to obtain an opinion as to whether or not the mechanics of the claimant's job activities contributed to his left ulnar neuropathy.

In a decision dated March 12, 2001, primary adjudication noted the claimant's job activities between September 1993 and February 1999 and that he became an acting inspector in February 1999. He became a permanent inspector in August 1999. The claimant first began to notice left arm symptoms in June 2000. Primary adjudication concluded that based on the delay between performing his 1993 - 1999 job duties and the date that he first noticed symptoms, it was unlikely that the claimant's left ulnar neuropathy was related to these job duties.

On January 14, 2002, a worker advisor submitted a report to Review Office from an orthopaedic surgeon dated July 3, 2001. The Review Office, in turn, returned the case back to primary adjudication to determine whether this new medical information would in any way change its earlier decision to deny the claim.

On March 11, 2002, primary adjudication determined that the new medical information did not alter its previous decision. The case was then referred back to Review Office to consider the worker's advisor's appeal.

In a decision dated April 26, 2002, Review Office confirmed that the claim was not acceptable. Review Office agreed with the opinion put forth by a WCB medical advisor that although the claimant's duties would be repetitive, there would be little evidence of any repetitive full flexion of the involved elbow, nor would there be sustained flexion of the elbow. In addition, there would be no pressure or trauma being placed on the claimant's cubital tunnel.

After reviewing all the medical evidence and taking into consideration the 10 month delay in the onset of symptoms in the claimant's left hand after termination of his alleged problematic duties, Review Office determined that a cause and effect relationship had not been established between the claimant's duties and the diagnosis of left ulnar neuropathy. On April 9, 2003, the claimant's union representative appealed the Review Office's decision and an oral hearing was convened.

Following the hearing on July 3, 2003, the Panel requested general medical information from the Office of the Registrar's medical advisor with respect to the condition of ulnar neuropathy at the elbow. This information was shared with all the parties.

On July 30, 2003, the Panel requested that the employer's representative meet with the claimant and his union representative to develop a statement of facts outlining the physical demands of the duties performed by the claimant as a part-time and full time Inspector. In a letter addressed to all interested parties dated December 1, 2003, the Panel clarified that it was interested in obtaining "…an agreed upon statement describing the specific job duties of a part-time and a full-time inspector. A Physical Demands Analysis is not required by the Panel."

On December 17, 2003, the Panel met again to discuss the case and considered an agreed upon "Statement of Job Duties" prepared by the employer and the claimant's union representative dated December 9, 2003.

Reasons

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
  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 underwent nerve conduction studies on October 31st, 2000. The testing confirmed a diagnosis of left ulnar neuropathy at the elbow. The claimant has taken the position that this condition is attributable to his work duties as a blackjack dealer during the period from 1993 to 1999.

The claimant testified that he first became aware of his symptoms in June 2000. According to the evidence, the claimant was off work and receiving compensation benefits for close to one year (December 1997 to November 1998) because of a back injury. When the claimant eventually returned to work in November 1998, he worked full-time as a dealer to February 1999 without experiencing any difficulties with his elbow. Thereafter, he performed the duties of an acting inspector, which duties only required his dealing cards two to three times a week out of every month. The claimant became a full-time inspector in August of 1999 and has not dealt since then other than in an emergency situation.

According to the medical evidence provided to the Panel as well as the parties hereto, the ulnar nerve is in a vulnerable position at the elbow and with movement of the elbow (flexion and extension) the ulnar elbow elongates and contracts approximately ½ cm. The ulnar nerve supplies muscles involved in such activities as wrist flexion, finger flexion, thumb movement, movements of the little finger and fine movements of the hand and fingers. Ulnar neuropathy at the elbow can be caused by:
  • direct trauma to the elbow (severe blow to nerve fibers);
  • sustained pressure on the elbow, for example leaning on the elbows;
  • repetitive flexion and extension of the elbow, for example throwing, boxing and jackhammer use;
  • chronic arthritis of the elbow joint;
  • fracture of the elbow;
  • idiopathic (arising spontaneously or from an obscure or unknown cause). This can comprise 1/4 - 1/3 of the cases in which the cause of ulnar neuropathy is not identified.
After having thoroughly considered all of the evidence in conjunction with the claimant's job duties both as a blackjack dealer and as a supervisor, we find that there is, on a balance of probabilities, no causal relationship between these duties and the claimant's condition of ulnar neuropathy at the elbow. We further find that there has been no accident as defined by the Act. Therefore the claim is not acceptable and the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
J. MacKay, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 21st day of January, 2004

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