Decision #82/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 21, 2004, at the employer's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The claimant filed a claim for compensation benefits on February 28, 2003, claiming that the repetitive nature of her job duties caused her to develop problems with her right second and third fingers.

A review of the medical information on file revealed that the claimant was diagnosed with thickening of the tendon sheaths of the right third and fourth digits along with nodules. It was also noted that the claimant had pain in her left hand, forearm and shoulder due to her favoring the right hand at work.

On March 6, 2003, a Workers Compensation Board (WCB) adjudicator contacted the claimant to obtain additional information with respect to her work history and the specific job duties that she felt had led to her difficulties.

On March 10, 2003, a WCB medical advisor reviewed the file at the request of primary adjudication. The medical advisor indicated that the most probable diagnosis was small ganglions on the site of the flexor tendon sheaths of the right third and fourth fingers. On a balance of probabilities, the medical advisor felt that the diagnosis was not related to the claimant's work duties. He noted that some of the claimant's work duties involved some repetition but there did not appear to be much force involved.

In decision letter dated March 11, 2003, the claimant was advised of the WCB's decision that her claim for compensation was denied as it could not be established that the diagnosis of ganglions were attributable to the performance of her job duties. On May 27, 2003, a union representative, acting on behalf of the claimant, appealed the decision to the Review Office.

On July 18, 2003, the Review Office overturned the decision by primary adjudication and made the determination that the claim was acceptable. Consideration was given to WCB Policy 44.10.20.20 with respect to the adjudication of claims for ganglions. Review Office found that the claimant's job duties involved prolonged, highly repetitive movement of the affected area and that the claim met the criteria identified in the ganglia policy adopted by the WCB. On August 11, 2003, the employer's representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

The eligibility for compensation benefits by federal employees is governed by the Government Employees Compensation Act (GECA) and the Government Employees Compensation Regulations (GECR) which are both administered by agreement in Manitoba by the Workers Compensation Board (WCB). In the GECA, an accident is defined as "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."

According to Section 4(1) of the GECA, compensation shall be payable to
(a) an employee who

(i) is caused personal injury by an accident arising out of and in the course of his employment, or

(ii) is disabled by reason of an industrial disease due to the nature of the employment.

The GECR provide that, "an employee who is disabled by reason of a disease that is not an industrial disease but is due to the nature of his employment and peculiar to or characteristic of the particular process, trade or occupation in which he is employed at the time of the disease was contracted ... is entitled to receive compensation at the same rate as he/she would be entitled to receive under the Government Employees Compensation Act if the disease were an industrial disease ...".

In 1993, the Board of Directors of the WCB instituted policy 44.05.10 in order to clarify and/or to expand the definition of accident contained in the GECA. This particular policy provides:

"The following principles will apply when interpreting GECA. The definition of 'accident' in the GECA will be given a broad interpretation. Therefore:
  1. The phrases 'personal injury by an accident' will be interpreted to mean 'personal injury by accident'.
  2. The interpretation of 'accident' will encompass both accidental cause and accidental result. That is, the injury itself may be considered the 'accident'.
  3. The gradual onset of a personal injury, including an injury resulting from a gradual process or repetitive injurious motion, will be considered an 'accident'."
As the background notes indicate, this case involves an appeal by the employer challenging Review Office's decision to accept the worker's claim. The claimant presented with a history of tenosynovitis involving the right index and middle fingers. In addition, examination by a plastic surgeon revealed a ganglion at the A1 pulley of each of these two digits. The claimant testified that her right hand difficulties "developed gradually from repetitive work, worsening over time".

The claimant's job duties were examined very closely and we have no difficulty in concluding that these duties required right hand dexterity and were highly repetitive. After having considered all of the evidence, we find that the claimant did, on a balance of probabilities, sustain injury to her right hand which arose out of and in the course of her employment. There is sufficient evidence to establish that an accident, as defined under the GECA, the GECR and/or WCB policy 44.05.10, did in fact occur on or about February 19th, 2003, as asserted. The worker's claim is therefore 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 11th day of June, 2004

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