The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections. (emphasis added)

The key issue to be determined by the panel deals with causation and whether the worker’s current medical condition arose out of and in the course of her employment.

Worker’s position

The worker was represented by an advocate at the hearing. The position advanced on behalf of the worker was that the job duties being performed by her led to the development of lateral epicondylitis. She noted that while the claim had initially been filed with the WCB for symptoms on the right side, the worker had more recently developed the same symptomatology on the left side. The worker gave a detailed description of her typical work week and identified the task of working with thick files as being the primary cause of her lateral epicondylitis. She demonstrated how she would pull out the file from shelving with an outstretched arm which was often at shoulder height, grip it, then twist her wrist to either place the file on the desk or to carry the file next to her body. Since every day is different, it was difficult for the worker to quantify the number of times she had to pull out files on any given day, but she did estimate that on clinic days, she would have about 15 files and she would refer to each file up to 2 or 3 times each day. The worker also identified page flipping as being an activity which may have contributed to the lateral epicondylitis condition. She described having to flip through large files and when so doing, she would use her middle finger of the right hand. She indicated that this motion involved the muscle which extends up the top of the arm back to the elbow. Finally, the worker identified the fact that her work station was not ergonomic and that an occupational therapist and a prevention specialist had reviewed the work set up and identified concerns, some of which had been addressed. A physical demands analysis from an occupational therapist consultant dated May 20, 2008 was submitted for the panel’s review. The panel was also provided with a form letter prepared by the worker’s advocate which had some handwritten comments by the worker’s family physician. The notes were dated July 18, 2008 and indicated the following:

• In response to the question: “Based on your review of the PDA report provided, is it likely that a patient could develop right lateral epicondylitis by performing the duties outlined in this report?” the family physician checked “yes” as his answer;
• On the line provided for a rationale, the family physician wrote: “I feel the condition was caused by picking up heavy patient files.”
• When asked to identify the specific movement which would be of concern regarding the development of lateral epicondylitis, the family physician wrote: “as above.”
• There is also a note that: “She has now developed the same condition on the left side.”

Employer’s position

The employer was not present at the hearing; however, a written submission was provided. The argument forwarded by the employer was that the work duties being performed by the worker were varied, largely involved working on the computer and did not require repetitive, sustained forceful activity that might be associated with the development of epicondylitis. Epicondylitis is an overuse injury caused by repeated and repetitive contraction of the forearm muscles to straighten and raise the hand and wrist. This type of overuse of the forearm muscles was not present while working at a computer. There was no change in the worker’s job duties to which to attribute the problem. It was suggested that an increase in strain to tendon fibres may occur from normal activity levels as part of the aging process. This could explain why the worker was now experiencing difficulty with her left elbow.

Analysis

To accept the worker’s appeal, we must find on a balance of probabilities that the worker’s disabling medical condition was caused by her employment. We are not able to make that finding.

At the hearing, the panel questioned the worker on the nature of her duties and the specific movements involved. When asked which duties she primarily identified as being causative of her lateral epicondylitis, the worker identified the handling of files. While it would appear that the task of handling files displayed prominently in the performance of the worker’s duties, we find that it involves nowhere near the degree of repetition which is typically associated with the development of lateral epicondylitis. The worker deals with files, but she also has a number of other varied duties. She typically deals with only a few files at a time, and is not involved in a continuous “assembly line” type of work environment. She can work at her own pace, and there is ample opportunity for her arm to have a rest cycle between tasks. In the circumstances, the panel was unable to find that the task of pulling files could have caused her lateral epicondylitis.

The worker had referenced the flipping motion required to go through files, but again we find that this task was not causative of her lateral epicondylitis. She did not perform this task on a daily basis, and we do not see how the movements would cause the problems of which she is complaining. The panel also notes that the worker had developed symptoms in her left arm, yet her evidence was that she never used her left hand to flip pages.

It should also be noted that the worker has been in her position for 15 years with no significant change in work duties. The lack of a change in work activity over such an extended period of time makes it difficult to attribute her symptoms to the job duties.

The physical demands analysis submitted by the worker’s advocate states in the comments section: “Physical demands of this position are primarily within the Limited to Light strength categories. Areas of note include neck flexion and repetitive use of the upper extremities.” It is of significance that the pulling of files and flipping of pages were not singled out as being important risk factors. In the panel’s opinion, the analysis was more concerned with strain to the neck and shoulder and did not particularly identify overuse of the elbows.

With respect to the handwritten notes by the family physician, the panel has some reservation in relying upon the physician’s opinion due to the brief nature of the report. We are not given any insight as to how the physician arrived at his conclusion that the condition was caused by picking up heavy patient files. As a result, we place very little weight on the opinion.