Decision #131/01 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on September 19, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on September 19, 2001 and October 2, 2001.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is not acceptable.
Background
While employed as a cashier in a grocery store on October 2, 2000, the claimant indicated that she felt a lump in her left hand that caused weakness and numbness whenever she tried to grip groceries. A Doctor’s First Report dated November 7, 2000, diagnosed the claimant with a ganglion of the dorsum of the left hand. The physician also requested approval from the Workers Compensation Board (WCB) for excision of the ganglion.
Information from the employer showed that on October 12, 2000 the claimant reported to her store manager that on October 2nd, she felt a lump in her left hand that caused problems with her gripping groceries. The claimant was a part time cashier and there was no time loss involved at this point. The employer noted that the claimant had prior claims relating to her left arm and questioned whether there was any relationship between these claims and her current problems.
File documentation showed that the claimant was scheduled for surgery to remove the ganglion on February 22, 2001.
On February 12, 2001, following review of all file information, a WCB adjudicator determined there was no specific accident or incident of direct trauma at work to have caused the claimant’s ganglion condition. It was the opinion of Rehabilitation and Compensation Services that the ganglion on the top of the claimant’s left hand was not considered work related.
In a submission dated February 27, 2001, a union representative appealed the above decision on behalf of the claimant. The following is an excerpt from her submission:
“It is our position that the medical information supports the Union’s position that the ganglion is, indeed, acceptable. Specifically, Ms. [the claimant] presents with a history of prolonged, highly repetitive movement of the area affected – her wrist – and is known to have to lift weights of various levels throughout the performance of her work duties. The injury caused her significant discomfort which she reported to her supervisor and to her doctor. The discomfort progressed to pain to such a degree that she was forced to lay off work entirely. The ganglion occurred during this disease process. The fact of the ganglion’s occurrence is compatible with the medical information on her WCB file, and the relationship is supported by her attending physician and her surgeon.”
Prior to considering the above appeal, Review Office sought the opinion of a WCB orthopaedic consultant on March 19, 2001, with respect to the formation of ganglions and the types of wrist movements that may cause ganglions.
On March 23, 2001, Review Office determined that the claim for a ganglion was unacceptable. It was Review Office’s opinion that although the position of a cashier may be repetitive in some aspects, it was not repetitive to the extent that it involved the wrist such that a ganglion would be formed. It was noted that given the number of individuals engaged in the profession in the province of Manitoba, more would be subject to the formation of ganglions if the nature of their work was the causative factor. This did not appear to be the case.
Review Office stated that it was known medically that most ganglions were idiopathic. It was not disputed that a worker with a ganglion would feel some pain and discomfort while performing their employment. This, however, in itself, did not mean that a person has sustained a personal injury by reason of an accident as was required in Section 4(1) of the Workers Compensation Act (the Act). On April 10, 2001, the union representative appealed Review Office’s decision and an oral hearing was arranged.
Reasons
This case involves a worker who suffered a ganglion at the base of her left hand. This was not accepted as a compensable injury by the WCB, as it was determined that her injury was not caused by a workplace accident. The Review Office upheld that decision. It is the latter decision that she has appealed to the Appeal Commission.
The issue before the Panel is whether or not the claim is acceptable.
For her appeal to be successful, the Panel must determine that her injuries arose out of and in the course of her employment, as required by section 4(1) of The Workers Compensation Act.
We were not able to make that determination.
Pursuant to section 60.8(6) of The Workers Compensation Act, the Appeal Commission is bound by the policies of the WCB. Board Policy 44.10.20.20, which deals with ganglia, reads as follows:
The Board will accept a claim for a medically diagnosed ganglion where it is probable that the condition was caused or aggravated by an accident arising out of and in the course of employment.
Where there is a medical diagnosis of a ganglion, the following shall be used as criteria for acceptance:
1. A history of prolonged, highly repetitive movement of the area affected, usually the wrist, particularly if a weight is involved; or
2. A well-established accident involving a blow to the area where the ganglion later appears.
3. Medical opinion indicates that the ganglion is a result of work-related activity or injury.
As we understand this policy, the test required for acceptance is two-part. The claimant must meet either clause #1 or #2 and clause #3.
The claimant in this case has worked for the same employer for a number of years, in a position which has been known to cause repetitive stress injuries and overuse injuries. Indeed, she had had a couple of prior claims for overuse problems with the same arm and with symptoms in the same general area where the ganglion occurred.
We note from medical literature that the cause of ganglia is obscure. Very often, they are idiopathic, i.e. there is no known cause, they simply arise spontaneously. More often than not, they regress spontaneously.
The advocate for the claimant argued that, given the juxtaposition of the ganglion and the previous overuse injuries and given that those previous injuries had been accepted as compensable, it follows that the current injury would also be work-related.
She further argued that the claimant met clause #1 of the policy, as her job was highly repetitive; and that she met clause #3, as her doctor had expressed the opinion that the ganglion was work-related.
The employer’s representative argued that the claimant did not meet the tests. He noted that the claimant’s physician does not specifically state that the ganglion is the result of a work-related activity.
He also presented evidence which questioned whether or not her occupation involved activities which are highly repetitive and prolonged over the course of her work week. It was his position, based on internal monitoring, that she actually spent only 25 – 30% of her time checking. He also notes that the claimant’s previous left arm complaints were to the elbow area (epicondylitis) with referral pain to the base of the hand and were not actually an overuse injury to the hand area.
In reviewing the claimant’s file, as well as the evidence presented at the hearing, we note that there are only two medical reports submitted by her attending physicians, plus one report by a board medical consultant. Neither of her physicians states categorically that the ganglion was caused by her work. The closest statement to this effect was the comment: “Request WCB approval for surgery.”
It was argued on behalf of the claimant that her attending physician found the ganglion to be related to overuse syndrome as a direct result of her work. However, our review of the file did not support this argument. We find no medical support for her ganglion being causally related to her work.
Given this, we are unable to conclude that the claimant meets the test set out in section #3 of the above-noted policy.
In respect of section #1, we found the evidence put before us by the employer to be persuasive. Although we fully acknowledge that the position of cashier may, and does, lead to repetitive stress and overuse injuries, we conclude that, in this case, on a balance of probabilities, neither repetitive stress nor overuse was the cause of the claimant’s injury. Therefore, this test is not met, either.
Accordingly, we uphold the decision of the Review Office and dismiss the appeal.
Panel Members
T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of October, 2001