The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker filed a claim with the Workers Compensation Board (WCB) for reflex sympathetic dystrophy (RSD) in her left leg and foot which she related to her work duties as a night stocker. The claim for compensation was denied by both primary adjudication and Review Office on the ground that it could not attribute the worker’s RSD condition to her work duties or to an accident as defined under subsection 1(1) of The Workers Compensation Act (the Act). A worker advisor disagreed with the decision and appealed to the Appeal Commission on the worker’s behalf. A hearing was then held on January 22, 2008.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In February 2007, the worker filed a claim with the WCB for RSD in her left leg and foot which she related to her work activities as a night stocker which involved standing long hours, climbing ladders, lots of walking and wearing steel toed boots with a high lift. The worker reported the injury to her employer on May 24, 2006.

On March 2, 2007, a WCB adjudicator contacted the worker to obtain additional information about her work history and her specific job duties. The worker indicated that she commenced employment on December 7, 2005 as a full time night stocker and that her last day of work was June 8, 2006. Her main duties were unloading boxes, stocking shelves, hauling pallets and packing and hanging clothes on racks. She used a ladder at least an hour and a half per shift. She went up and down the ladder about 30 to 40 times per shift. With regard to her previous medical history, the worker said she was diagnosed with right leg RSD about 4 years ago and was also diagnosed with restless leg syndrome. The worker indicated she had no symptoms in her left leg prior to being employed with the accident employer. Sometime in May 2006, she started to have problems with her left leg.

In a March 27, 2007 report, the treating physician indicated that the worker was seen for left leg weakness in May 2004. She noted that the worker has been treated for a number of years by a specialist for inflammatory arthritis of her right leg which led to the diagnosis of RSD. She noted that the worker’s right leg RSD increased because of being on her feet at work and wearing steel toed boots. She said these activities caused an increase and spread of her RSD.

In a decision dated March 29, 2007, primary adjudication denied the claim for compensation on the basis that it could not establish a relationship between the diagnosis and an accident as defined under subsection 1(1) of the Act. It was indicated in the decision that the worker’s symptoms started in 2004 prior to her employment with the accident employer and there was no specific accident or trauma to have caused her difficulties.

On April 11, 2007, the treating physician indicated that there was an error in her letter to the WCB dated March 27, 2007. She stated that the worker complained of weakness in her left leg in May 2006 instead of May 2004 as was previously indicated.

On April 25, 2007, the worker appealed primary adjudication’s decision of March 29, 2007 to Review Office.

In a decision dated May 17, 2007, Review Office confirmed that the worker’s claim for compensation was not acceptable. Review Office felt there was no evidence to suggest that the worker’s 6 month employment as a night stocker was causal in the development of an RSD condition. It found no evidence to show that the worker suffered any trauma in the workplace to precipitate a condition of RSD. Review Office stated it was unable to conclude from the evidence that the worker suffered a personal injury by accident arising out and in the course of her employment.

On August 15, 2007, a worker advisor asked the Review Office to reconsider its decision of May 17, 2007. The worker advisor submitted that the worker did not have any problems with her left leg prior to her employment and that she was able to carry out her full regular duties until her work duties increased. Therefore there was a causal relationship between the increase in duties and her RSD condition which arose out of and in the course of her employment. The worker advisor also referred to a medical opinion dated August 9, 2007 which expressed the view that the worker’s job duties were a contributing factor to the development of her left leg RSD condition.

On October 3, 2007, Review Office confirmed its decision to deny the claim. Review Office stated that it could not accept the claim on an “aggravation” basis, as there must be a pre-existing condition and an “accident” and that neither of these factors had been established. It felt that the opinion outlined by the treating physician that the job duties contributed to the development of the worker’s RSD condition was not supported by any medical literature. It noted that the worker had risk factors for the development of RSD such as rheumatoid arthritis, gender and age. Based on the weight of evidence, Review Office concluded that the job duties were not the cause of the worker’s left leg/foot RSD nor was there evidence of any personal injury by accident arising out of and in the course of the worker’s employment. On October 16, 2007, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Regarding her increased hours, the panel notes this worker previously worked these hours at the commencement of her employment without experiencing RSD symptoms. We note when the worker resumed the five day shifts her duties remained the same. There is no evidence that shows any part of the worker’s duties would have resulted in the development of the left RSD.

While her physician supports a causal connection to her work, the panel notes this condition is usually a result of trauma which was not indicated in the worker’s reports of injury or to her medical practitioners. The panel noted that often, the etiology is not clear and in cases where the condition exists in one limb it is known to move to another limb. The worker in this case had a four year history of right sided RSD. This along with other risk factors she has, would relate to the RSD progressing to the left side. The panel notes her condition in both legs has deteriorated considerably since leaving her employment which would be consistent with systemic rather than a work related condition. In considering these various etiologies, the panel finds that the condition more likely than not was related to non work-related issues.

The panel considered the argument that the ladder climbing constituted a trauma and contributed to her development of her left RSD. We note ladder climbing was done on a solid supported ladder, the climbing was not continuous, and that breaks were provided along with a variety of other duties. The panel finds the worker did not suffer a trauma resulting from any part of her ladder climbing duties.

The panel further finds, on a balance of probabilities, that the increase in the worker’s RSD symptoms at work does not equate to an aggravation of her condition or that the condition could be causally connected to her five day shift, the climbing of ladders or the wearing of steel toed boots.

The panel is satisfied this worker’s RSD is a naturally progressing medical condition and cannot find, on a balance of probabilities, any causal connection to her employment.

The claim is not acceptable.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 7th day of February, 2008