The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with the issue of claim acceptability. The worker filed a claim in January, 2004 with the Workers Compensation Board (the "WCB") that was initially accepted for right epicondylitis. The acceptance of the claim was then rescinded when it was determined that her right elbow complaints were caused by pigmented villonodular synovitis, abbreviated as PVNS.

The worker appealed the WCB's denial of her claim to the Appeal Commission. An appeal panel hearing was held on June 15, 2006. The worker appeared and provided evidence. She was assisted by a translator and represented by an advocate. The employer and its advocate also attended.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

Reasons

Background

In January, 2004 the worker filed a claim with the WCB for a recurrence of a May 23, 2002 injury (the "2002 injury"). On that day in 2002, the worker had slipped and fell at work causing her a sore low back and right hip, stiff neck and sore right hand. The employer disputed the recurrence of the 2002 injury as the worker had returned to her regular duties in August, 2002 and had not made one complaint since then.

The injury in January, 2004 (the "2004 injury") was listed as a sore right elbow and right index finger, sore neck and back that she related to repetitive duties in a packaging department which included wrapping portion cuts, lifting 15-16 lb. items and pulling boxes on a conveyor belt. The WCB denied a claim for recurrence of the 2002 injury and suggested that the worker file a new claim for a new injury.

This was done and her claim was initially accepted as a right epicondylitis injury. The worker was placed on light duties in the laundry room while she underwent medical treatment.

A memorandum to file dated February 20, 2004 records a conversation between the WCB and the worker. It notes that the worker's right elbow started to bother her one week before January 30, 2004 while packaging. There was no specific accident.

As the worker's elbow pain did not improve, she attended an orthopaedic specialist on March 9, 2004 and was treated with a steroid injection into her right elbow. The orthopaedic specialist's medical report of same date notes that the worker was lifting and packaging parcels and had much pain in the right arm and right elbow about January 13, 2004. X-rays of the right elbow and forearm were reported as being within normal limits. In his last report dated March 24, 2004, the specialist reported that the worker's elbow was showing some improvement but she still had pain on flexion and extension. Her right shoulder and hand had full movements. Rotation and strength of the right forearm were good. The worker was advised to take Tylenol and to carry on with her work.

On March 29, 2004, the worker began a graduated return to work program but continued to experience a flare-up of symptoms regarding her right elbow and hand pain. On April 15, 2004 the worker was terminated from her employment for an alleged breach of medical absences procedure.

On April 19, 2004, the worker was assessed by a specialist at a sports medicine facility. The worker's presentation was reported to be consistent with right lateral epicondylitis though he did not know the reason for her inability to activate her right biceps. Treatment recommendations included a trial of six acupuncture treatments.

The worker was examined by a WCB medical advisor on October 7, 2004 because of her ongoing elbow pain. It was determined at this examination that the worker had not recovered from the effects of her work related injury but she was capable of modified duties.

The worker was seen by a second orthopaedic specialist on December 9, 2004 who reported that the worker's bone scan was normal except for some increased uptake at both elbows that were keeping with early osteoarthritis. On January 20, 2005, the orthopaedic specialist suggested that the worker see a physiotherapist for instruction in a home exercise program.

The worker's symptoms still did not resolve and it was not until she underwent an MRI of her elbow on June 3, 2005 that it was discovered that the worker might have PVNS.

The worker was then referred to a third orthopaedic specialist who thought that that the PVNS was "likely the cause of her pain and decreased motion". In a July 4, 2005 report, the orthopaedic specialist opined that the PVNS was not caused by the worker's job duties but that it might have been aggravated by them.

Surgery to the worker's right elbow was performed on September 6, 2005 to excise the tumor in her right elbow. A pathology report later confirmed that the tumor was consistent with PVNS.

Shortly thereafter, the employer asked Review Office to rescind the decision to accept the worker's claim as there was no accident within the meaning of The Workers Compensation Act (hereafter "the Act").

The worker's medical file was reviewed by a WCB medical advisor on December 16, 2005. His opinion was as follows:

"The [worker] has [PVNS] of the [right] elbow which is a benign tumour-like [sic] condition of the synovial of the joint which is locally invasive & destructive & can recur following excision; but is not work related, the etiology being unknown. It is slow growing and was the condition all along."

The third treating orthopaedic specialist was not as categorical as to the cause of the worker's PVNS:

"…She tells me that her case is still under appeal at WCB. I am not sure what the result of this is going to be. She had a normal elbow until the injury and then problems which are improving since the excision of the PVNS. There is no way to prove what caused the PVNS, though this could be related to the injection she had in the antecubital fossa for [epicondylitis]…"

On December 23, 2005, Review Office rescinded the decision to accept the worker's claim.

Worker's position

The worker takes the position that her PVNS was caused by trauma to her right elbow when she slipped and fell at work on May 23, 2002. She therefore says that her claim is acceptable.

Employer's position

The employer says that this panel does not have jurisdiction to deal with the 2002 claim as it has not been fully adjudicated by the WCB. With respect to the claim before the panel, the employer says that the claim is not acceptable as there is no evidence of an accident at work that could be responsible for causing or aggravating the worker's PVNS.

Analysis

To accept the worker's appeal we must find that the worker's PVNS was caused or aggravated by the worker's job duties. We are unable to make that finding.

Subsection 4(1) of the Act stipulates that a personal injury is compensable when it is a result of an accident arising out of and in the course of employment.

WCB Policy 44.10.20.10 deals with pre-existing conditions, the relevant provisions of which follow:

"…The Worker's (sic) Compensation Board of Manitoba will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The Worker's (sic) Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment…

1. (a) Where a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker's (sic) Compensation Board will accept responsibility for the full injurious result of the accident...

B. DEFINITIONS

1. Aggravation: The temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable accident.

2. Enhancement: Where a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.

3. Pre-existing Condition: A condition that existed prior to the compensable injury."

It is evident from the above, that a compensable accident is required before any WCB benefits are paid to a worker.

The worker testified at the hearing that her right elbow was symptomatic regardless of whether she was at work or at home. She also testified that her right elbow was sore before she began her packaging duties. We therefore find that there is insufficient evidence to link the worker's job duties to her PVNS symptoms.

The worker was also quite candid at the hearing that she thought that it was her May, 2002 workplace accident that caused her PVNS as she says she landed on her right elbow when she slipped and fell.

The employer took the position at the hearing that this panel is without jurisdiction to make any decision with respect to the 2002 workplace accident. We agree. Subsection 60.8(1) of the Act is quite clear that the adjudicative process before the WCB must be exhausted before an appeal can be brought before the Appeal Commission. Therefore, the causal role of the 2002 workplace accident in the development of the worker's PVNS must first be dealt with by the WCB.

Given the foregoing, we find, on a balance of probabilities, that the worker's 2004 claim is not acceptable.

Accordingly, the worker's appeal is denied.

As a final note, the worker asked the panel to order various remedies associated with her termination of employment, which she alleges occurred as a result of time missed from work due to her PVNS symptoms. Once again, this panel does not have jurisdiction to award relief for labour related matters (see in particular subsection 60(2) of the Act).

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Kosc

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of July, 2006