The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 22, 2005, at the request of a worker advisor, acting on behalf of the worker. 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

On February 6, 2004, the worker contacted the call centre at the Workers Compensation Board (WCB) to report a right thumb injury that occurred at work. The worker indicated that as a shoe salesperson she would use a shoehorn and that people would put their foot down before she could move her thumb away from the shoe. This action would cause her right thumb to jam. The worker indicated that she had been having problems with her right thumb for about 3 to 4 months and thought it was arthritis. The worker reported her ongoing complaints to her employer.

The Employer's Accident Report dated February 18, 2004, showed that the worker reported an incident that happened in October 2003 while helping a customer put on a pair of shoes which was part of her duties.

Initial medical reports on file confirmed a diagnosis of right trigger thumb and surgery was requested to release the trigger thumb.

On February 20, 2004, a WCB adjudicator contacted the worker to gather additional information about her work history/activities and particulars about the onset of her right thumb difficulties.

On March 5, 2004, a WCB medical advisor reviewed the file information and outlined his view that the mechanism of injury would not be capable of causing trigger thumb.

In a decision dated March 8, 2004, a WCB adjudicator informed the worker that her claim for compensation was denied as a relationship between her job duties, the specific injury in October 2003, and the diagnosis of right trigger thumb could not be established.

On May 21, 2004, a worker advisor asked the WCB to reconsider its decision of March 8, 2004. The worker advisor's position was that the claim satisfied subsections 1(1), 4(1) and 4(5) of The Workers Compensation Act (the Act). The worker advisor felt there was medical consensus from both of the worker's treating physicians that, on a balance of probabilities, there was a relationship between the worker's right thumb triggering and her work activities. A medical report dated April 26, 2004 was submitted for consideration.

In a response to the worker advisor dated June 3, 2004, the WCB adjudicator stated that the decision to deny the claim was an adjudicative decision. She felt that the work activities described on file did not cause the worker's right thumb difficulties. On July 15, 2004, the worker advisor appealed the decision to Review Office.

On July 28, 2004, Review Office confirmed that the claim was not acceptable. Review Office made reference to the findings noted by the worker's general physician that the worker had symptoms in both thumbs, with the dominant right hand being worse. He stated that the trigger thumb and proposed surgery may or may not be work related. Review Office indicated that the diagnosis of trigger thumb generally results from highly repetitive or forceful use of the thumb and that prolonged, forceful grasping may also aggravate the condition. Review Office concluded that the weight of evidence did not support a relationship between the worker's incident of October 2003 or her employment activities in general and the diagnosis of a right trigger thumb. On March 1, 2005, the worker advisor appealed Review Office's decision and an oral hearing was convened.

Reasons

The Appeal Panel was asked to determine whether the worker's claim for injury is acceptable. For the appeal to be successful, the Panel must find that the worker's injury was related to her employment. The Panel did find on a balance of probabilities that the worker's injury was caused by or enhanced by her employment and that her claim is acceptable.

The worker attended the hearing with a worker advisor who made a presentation on her behalf. The worker answered question posed by her representative and the Panel.

The worker described her employment duties as a shoe salesperson which included moving and handling boxes of shoes, assisting customers with trying on the shoes, sales of shoes and computer work.

The worker acknowledged that prior to her accident she had some symptoms affecting her right thumb which she thought were due to arthritis.

She advised that in October 2003 she suffered an injury to her thumb while assisting a customer to try on a pair of shoes. She described and demonstrated the mechanism of this incident. While the worker was holding a shoe horn at the back of the shoe, the customer jammed the worker's right thumb into the shoe causing the sharp edge of the shoehorn to ram into the underside of her thumb. After this incident the worker developed significant symptoms affecting her thumb. This included pain and triggering of the thumb.

The worker advises that she did not miss time from work except for time related to the surgery on the thumb.

The worker's representative reviewed the medical information and submitted that the weight of evidence supports a causal relationship between the worker's employment and the injury to her thumb.

Analysis

After considering all the evidence the Panel finds on a balance of probabilities that the worker's right thumb condition is related to her employment and that accordingly her claim is acceptable. The Panel is satisfied that the requirements of subsection 4(1) of the Act has been met. The Panel finds that in October 2003 the worker suffered an injury as a result of an accident which arose out of and in the course of her employment as a shoe salesperson and that the worker's trigger thumb condition was caused by or enhanced by this accident.

The Panel finds that the worker's injury is consistent with the mechanism of the accident which involved the hard compressive jamming of the end of the thumb by the top end of the shoehorn. We note that the worker sought medical attention immediately after the October 2003 incident. We also note that the worker reported the incident to her employer at that time. Finally we note that the injury did not resolve and that surgery was ultimately required.

The worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of July, 2005