The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction

The issue before this panel is claim acceptability. Subsections 4(1) and 1(1) of The Workers Compensation Act (the “Act”) provide that for a claim to be acceptable, the worker must have suffered personal injury from an accident arising out of and in the course of employment. Accordingly, the determination of the issue before us hinges on an examination of the worker’s job duties to determine whether or not, on a balance of probabilities, they caused the worker’s condition.

Background

The Job Duties

The worker has been employed as a driver since September 1990. Up until 2003 she worked a split part-time shift consisting of 4 hours in the morning and 2 hours in the afternoon. The worker’s route during this period was a city route. It consisted an approximately 35 kilometre run over 1 ½ hours with 35 to 40 stops and 83 turns. The vehicles the worker drove during this period of time were generally older models which had fixed-level steering wheels, gear shifts and manual door-openers.

At the hearing, the worker described her body position behind the steering wheel. She explained that given her short stature, she had the seat positioned quite low in relation to the steering wheel. As a result her arms were outstretched at shoulder height, with a slight crook at her elbows and wrists.

The worker explained that her left hand was placed slightly higher on the steering wheel than the right hand. It remained constantly on the steering wheel except when she activated the emergency light buttons. The right hand was also used to change gears, open the door and gesture to passengers.

She likened the steering system in the old vehicles to driving a car without power steering. She explained that to turn the vehicle, she needed to slow the vehicle down and forcefully turn the steering wheel with a push/pull mechanism with her hands grasped to the steering wheel. The worker explained that the majority of the push/pull mechanism was done with her left hand as that was her dominant hand. In particular, she held the steering wheel stable at the top with her right hand, while pushing the wheel from bottom to top with her left hand to turn right, and from top to bottom with her left hand to turn left. Her left wrist would flex at the top of the wheel and extend at the bottom.

The worker testified that recent changes to her vehicle, namely an automatic gear shift and an automatic door opener, have had an enormous and positive impact on her symptoms.

The Medical Condition and Reports

The worker first noticed twinges of pain in her left wrist in late 1992, early 1993. She saw her family physician at that time who diagnosed her with medial epicondylitis (“golfers elbow”) and provided some home exercises.

The worker continued with her regular duties but over time her symptoms increased to include difficulty holding objects that required using an open hand, for example, a jar lid or leaning on the hand. In follow-up with her doctor, she was referred to physiotherapy and provided a wrist brace. The worker testified that though her condition never resolved, the physiotherapy treatment and the brace reduced her pain to a level that allowed her to keep working.

In late 1998/early 1999, after returning from a maternity leave, her condition took a turn for the worse and she began to have difficulties performing her job. It was also at this time that her right hand became symptomatic. She saw a different doctor as her regular doctor left practice. This doctor diagnosed her with left wrist tendonitis and pain in her right hand. She was once again referred to physiotherapy and provided a brace for her left hand and a padded glove for her right hand; and once again her symptoms abated but never fully resolved.

In 2002/2003 her condition once again worsened and this time also affected her right arm. She returned to her doctor. She was diagnosed with bilateral lateral and medial epicondylitis and referred to a neurologist and occupational therapist for assessment. The occupational therapist questioned whether the worker had carpal tunnel syndrome. This diagnosis was ruled out by the neurologist after a nerve conduction study. The worker was also referred to a specialist for cortisone shots in her elbows.

The worker testified that since the inception of her bilateral arm condition, she has tried to deal with it on her own, only seeking medical attention when she could no longer cope. She also testified that her condition appeared to ameliorate when on long periods of break, such as, for example, summer holidays or maternity leave.

The worker’s doctor has stated that most of the worker’s wrist pain which extends into the shoulders, is felt to be related to her job. No rationale is provided.

Worker’s position

The worker says that her condition is caused by her driving duties for several reasons: the condition occurred after several years on the job; the vehicles she drove were ergonomically designed for men who are larger, with a longer reach and greater upper body strength; the movements she makes in the performance of her duties are repetitious and continuous and she engages in wrist flexion and extension; she does not engage in any other activity that could account for them. She surmises the left symptoms began first as her left hand is her dominant hand and she tends to apply the most pressure with this hand. In the alternative, she says that if her job did not cause her condition, then it must at least have aggravated it.

Analysis

As stated previously, the issue before this panel is claim acceptability. Therefore, to accept the worker’s appeal we must find on a balance of probabilities that the worker suffered an accident within the meaning of 4(1) and 1(1) of The Workers Compensation Act (the “Act”). In reviewing the worker’s job duties and her medical diagnoses, we are only able to make this finding on a balance of probabilities with respect to her left arm condition. This finding is based on the worker’s evidence of her specific way of holding the steering wheel and the positioning and use of her left upper extremity in driving and not her job duties generally.