The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 6, 2004, at the request of a union representative, acting on behalf of the claimant. 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

In July 2003, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report problems that she was experiencing with her right thumb which she related to her employment activities as an accounting clerk. The claimant described her difficulties as follows:

"Too much writing on a daily basis (80% of my job lately is writing). The coding is getting worse and there is too much for one person to do. This has been going on for awhile. In the past 5 months the workload has even gotten worse."

The Employer's Report of injury dated July 24, 2003, stated that the employer was aware that the claimant had suffered from tendonitis during a maternity leave. The claimant informed them that she had pain but had not missed any work until now. The employer said they were not sure which duties contributed to her injury, i.e. writing or something else.

In a memo on file dated August 1, 2003, the claimant provided a WCB adjudicator with the following information:

• she was on maternity leave between April to November 2000. She went off work early because of health concerns with the pregnancy.
  
  
• the problems with her thumb began after her delivery and she noted weakness, numbness, sharp shooting pain and swelling. The claimant said that she was told by her physiotherapist her thumb problem was a type of tendonitis that was related to her work. The claimant questioned this as she had not worked since April 2000. The therapist explained to her that her thumb condition surfaced now because she had just gone through child birth and there were so many changes in her body during that time that the weak spot would always surface. The therapist also indicated that the claimant's thumb tendonitis could come back at any time in the next 5 years. If 5 years went by without the thumb problem coming back, then it would never come back again.
  
  
• The claimant said she returned to her regular full time work in November 2000 and had been doing the same job without any trouble until July 2003. There had been no changes to her job duties before she noticed the problem in July. She spent most of her day writing and did one hour a day of computer keying, using her right thumb to hit the space bar. She wrote numbers on paper coding invoices. She did not have to carry or flip though a book to look up the invoice codes. The claimant separated cheques one at a time and held the stub with her right thumb and tore down with her left hand.

Medical information received from the claimant's treating physician outlined her condition as right De Quervain's syndrome.

In a decision letter dated August 29, 2003, the WCB advised the claimant that her claim for compensation had been denied. Following consultation with a WCB medical advisor, the WCB was unable to establish a relationship between the claimant's job duties and the reported diagnosis. On October 6, 2003, a union representative, acting on behalf of the claimant, appealed the decision to Review Office.

On November 7, 2003, Review Office confirmed that the claim was not acceptable as it could find no evidence to support the claimant's contention that the onset of her De Quervain's condition was caused by her work duties or that she suffered a personal injury by accident arising out of and in the course of her employment. Review Office felt that "keying" for the balance of her shift, one hour per day, would not cause the development of a De Quervains condition. There was no accident or evidence of any aggravation. Review Office did not consider that writing and separating cheques using her thumb was overly repetitive.

Review Office also took into consideration the fact that the claimant previously had tendonitis which began when she was not at work but was on maternity leave. The claimant only attributed her problems to her work, based on the information that she received from her physiotherapist, who told her that it would recur anytime in the next five years.

On January 7, 2004, the claimant's union representative appealed Review Office's decision as she was of the view that the claimant's work duties did cause her injury. On May 6, 2004, an oral hearing was convened to consider the appeal.

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, this case involves an appeal of a WCB decision that concluded the claimant's right hand thumb pain was not causally related to her job duties. The claimant's condition had been diagnosed as De Quervain's tenosynovitis of the right hand. She very carefully described in great detail the many and varied repetitive tasks that she would be required to perform on a daily basis. In addition, the claimant testified that her right hand condition first began to be noticeable following the birth of her son in 2000.

We find that the claimant's job duties were far more involved than just writing down code numbers with a pen (i.e. stapling, removing staples, stamping forms, separating forms, recording codes, etc.). We further find that the claimant's job duties were very repetitive and that on a balance of probabilities these duties aggravated her pre-existing De Quervain's tenosynovitis. We are satisfied that the aggravation of this pre-existing condition arose out of and in the course of her employment. Consequently, the claim is acceptable and the claimant's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 25th day of June, 2004