The Appeal CommissionThe Workers Compensation Act of Manitoba

The issue in this appeal is whether or not the worker’s claim is acceptable.

The Act provides that workers shall be paid compensation when they sustain personal injury by accident arising out of and in the course of their employment. Specifically, subsection 4(1) sets out as follows:

Compensation payable out of accident fund

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.

The term accident is defined in subsection 1(1) of the Act as follows:

“a chance event occasioned by a physical or natural cause; and includes

(a) a willful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

and as a result of which a worker is injured.”

To decide whether the worker’s claim is acceptable, the Panel needed to determine whether the worker had sustained a personal injury by accident arising out of and in the course of her employment.

Based on its review of the evidence as a whole, the Panel has determined, on a balance of probabilities, that the worker has not sustained such an injury.

The Evidence

At the hearing of this appeal, the worker and her representative advisor submitted that she had suffered an injury as a result of repetitive and physically demanding duties she was required to perform at work. The worker’s representative focused on the fact that the worker reported to the WCB that her “injury resulted from repetitive use of [her] right wrist”. He noted that in the accident report the worker provided a detailed description of some of her regular employment duties. For example, she stated "I am continuously gripping the knife, bending and twisting my right wrist”.

The worker’s advisor submitted that of particular note was the following description of the worker’s duties as set out in the report:

“…this involves cutting anything that comes out of the oven … [which] … involves using angled pliers to grab the pan out of the oven i.e. reach up into the oven with pliers in right hand and grab and place on cutting board; with the pizza when holding pan with pliers clmt has to give a flick of the wrist … CLMT would be doing this approx every 3 to 7 mins over a 4 hr period.”

At the hearing of the appeal, the worker’s evidence confirmed that her job duties involved repetitive tasks including gripping, lifting, cutting, pushing and chopping, all of which she did primarily with her right hand.

The worker testified at length during the hearing as to the nature of her job duties. Her evidence provided the following description of duties:

“Anywhere from providing the prep list for the morning for the rest of the staff and myself to complete, ordering and doing inventory, rotating the stock in both coolers and freezer, preparing food on a multitude of different stations as there was pasta salads, pizza and other entrees and desserts.

Majority I was pasta and cut so pretty much every dish that came out of the kitchen, other than appetizers, was handled by myself, and the moment the business has slowed down, I was to send everybody home to keep staff hours or staff costs down, and had to maintain the kitchen myself for anywhere from more than likely 2-4 hours if it was a quiet day…

With our cut station I was positioned at the back of the conveyer ovens we have and either any of the breads, pizzas, any baked pastas that came through I was to lift them with an angled set of pliers to our cut board and either flick or toss to get them out of the pan, cut them with the meat cleaver and plate them accordingly to what it was.

As for pasta, it was with induction cooking and the pans are quite large and heavy and within anywhere from 30-60 seconds it goes from cold to boiling, which then has to be plated, and when you are working with three different induction cookers all at the same time it becomes quite a stressful situation.

With the cut station again, the ovens where I am removing the food from stood as tall as myself. The top deck was about chin level, the medium deck was about at my waist and the lower deck, which was rarely ever used, was at about shin height.

And primarily it was the top decks where all of our food came out at…”

The worker testified that lifting the pizza pans out of the oven involved mostly muscle strain. She said she agreed with the opinion of the medical specialist expressed in his report dated April 4, 2007 that the job task which was the most likely cause of her injury was the gripping of the pizza cleaver to cut pizza sections.

The worker’s evidence was that she first noticed symptoms in both hands and wrists when she awoke on the morning of September 20, 2006. Her symptoms worsened throughout her work day and on September 21, 2006 she attended a local hospital due to her right wrist pain. The possible diagnoses were tendonitis or CTS. She re-attended on September 28, 2006 with similar complaints.

The attending physician advised her to limit the use of her right hand. When she attempted to return to work she experienced increasing symptoms and could not keep up with her employment duties. Accordingly she reported to the WCB that her injury resulted from repetitive use of her right wrist.

On October 10, 2006, the worker advised the WCB that her physician had injected her right elbow for a possible treatment of tennis elbow and tendonitis. She was referred for physiotherapy and occupational therapy.

The worker’s family doctor referred her for occupational therapy to treat: “repetitive strain injury”.

A WCB Medical Advisor reviewed the file and expressed the opinion that the worker suffered from tendonitis of the wrist and forearm.

In November 2006 the worker advised she had not had any improvement in her symptoms since being off work.

A December 2006 nerve conduction study indicated the worker complained of bilateral wrist pain as well as right elbow pain. The study showed no evidence of CTS and the right ulnar motor response was normal across the elbow. A bone scan did not indicate any evidence of active epicondylitis.

The worker was eventually referred by her family physician to a specialist for an assessment. The initial report from that physician was provided on January 31, 2007.

In that report, the physician noted from the worker’s history that she stated she awoke September 20, 2006 with soreness in her finger joints and wrists in both hands, more so on the right. The physician stated his clinical findings were suggestive of wrist sprain with pains and impairments localizing to the radial wrist around the scaphoid bone.

The physician noted that to date there had been a number of possible diagnoses of the worker’s injury including de Quervain’s Tendonitis, epicondylitis and possible ulnar nerve involvement.

The specialist commented that the nerve conduction study indicated ulnar nerve delays at the elbow. He concluded by stating his impression was that the worker’s condition was related to heavy lifting and gripping on the job, consistent with wrist flexor muscle strain. He stated that it required night splinting and rest to relieve ulnar nerve irritation causing her hand symptoms.

He also stated there was not a clear history of a hyper extension or sudden torque on the wrist but he noted that the worker did a lot of heavy lifting in awkward positions on the job. He suspected the soft tissue findings in the forearm, of tenderness, were secondary from guarding the uncomfortable hand and wrist. He recommended a more experienced assessment and trial of wrist mobilization for which he referred the worker to a physiotherapist.

The physiotherapist’s report indicated a diagnosis of cubital tunnel syndrome.

In a subsequent report dated April 4, 2007, the specialist commented that in reviewing the worker’s job tasks, she described a very frequent task throughout the shift: gripping the large pizza cleaver knife to cut pizza sections which involved repetitive forceful wrist pressures in ulnar deviation. In the specialist’s opinion this was the likely job task that induced her forearm strain and cubital syndrome.

In a final report provided to the worker’s representative, dated August 23, 2007, the specialist stated his impression that

“vigorous, repetitive duties at work led to the onset of her right arm troubles, initially localized to the wrist and ulnar hand, caused by muscle strain and hypertonus related to the wrist and finger flexor muscles in the medial forearm…there remains a significant causal relationship between [the worker’s] workplace duties to explain the onset of her problems and the emerging symptom profile and restrictions.”

The physician went on to express the opinion that the worker’s symptoms and functional impairment had persisted despite being off work 10 months in part due to chronic muscle hypertonis throughout the left upper limb from the repetitive work related over use prior, continued irritation with everyday activities, and insufficient treatment due to lack of coverage.

On February 16, 2007 a WCB Medical Advisor examined the worker and indicated the diagnosis was unclear based on the reported symptoms not being explainable on a pathoanatomic basis.

At the hearing of the appeal, the worker was asked for more detail regarding the onset of her symptoms. She testified that when she woke up on the morning of September 20, 2006 both her hands felt the symptoms being “very stiff and achy”. She said she noticed symptoms in both her hands through the joints into the wrists; each of the knuckle joints were all achy. She said all 10 fingers were achy, more prominent in the right hand than the left. In her left arm the pain ended at her wrist joint while in the right arm it extended about half way up her forearm. She said that over the next few days the symptoms in the left arm slowly dissipated working their way down from the finger tips into her wrist. The wrist was the last part that was the most stiff and sore.

At the hearing the worker testified she does not feel her symptoms have significantly improved since being away from work. When asked her opinion as to why she had not improved, the worker stated that it took 4 months to discover that she had a possible ulnar nerve injury. She said that prior to that time her doctors believed that she had a carpal tunnel injury or tendonitis. It was her evidence that she lacked proper medical treatment for what could be done to help her arm and had received conflicting medical advice.

After the hearing concluded, the Appeal Panel requested information from the physiotherapist who treated the worker’s wrist in 2007. The Panel then arranged for the worker to be examined by an independent medical specialist. In his report dated August 1, 2008, the physical medicine and rehabilitation specialist set out his findings in a detailed analysis. As part of his analysis, the independent specialist not only conducted a thorough physical examination of the worker but also reviewed all of the medical reports and diagnostic investigations in the file including: reports provided by the worker’s own physician and those provided by WCB Medical Advisors; the incident report filed by the worker on September 22, 2006; the employer’s accident report dated October 6, 2006; and portions of the transcript from the hearing of the appeal including those portions dealing with the worker’s job description.

The independent specialist concurred that the most probable diagnosis of the worker’s current right upper extremity symptoms is a suspected ulnar neuropathy in the right arm, most likely localized to the elbow region. He noted that the evidence that supports this probable diagnosis was by historical evidence alone because there were no current objective findings on physical examination or electrophysiologic evidence from nerve conduction studies and electromyography to support this diagnosis.

The independent specialist went on to describe that the ulnar nerve in the forearm travels between the medial epicondyle and the olecranon at the elbow. He stated this is a common location for compression or stretch of the ulnar nerve which can occur from repeated extrinsic pressure or by hyperflexion of the elbow. He went on to state that when the nerve experiences some demyelination or axonal injury subjects often experience paresthesias in the distribution of the nerve on the palmar and dorsal aspect of the palm and 4^th and 5^th digits of the respective arm. The ulnar nerve also innervates the majority of the intrinsic hand muscles and therefore can be a reason for grip strength weakness.

The independent specialist found that on physical exam the worker did not demonstrate any atrophy of fasciculations in any ulnar innervated muscles of her symptomatic right hand. She had normal strength in all ulnar innervated muscles. There was no Tinel sign at the elbow region. He also noted that the electrodiagnostic study on the worker’s right arm done December 15, 2006 reported normal ulnar motor responses across the elbow.

In his report of August 1, 2008 the independent specialist expressed the opinion that the worker’s condition was not a result of the work duties in the restaurant which she performed prior to the occurrence of her symptoms on September 20, 2006. The physician set out 4 points in support of his opinion:

“1) When the worker first reported the symptoms that she related to the work injury she mentioned pain in her hands. While it is suggested in later medical assessments that she was experiencing intermittent paresthesias in her fourth and fifth digits this complaint was not initially reported. While this presentation is plausible, it is difficult to know the precise onset of these symptoms as she reported similar symptoms upon waking-up in the morning, or when holding a telephone prior to working at the job where the incident was reported. The temporal relationship of the fourth and fifth finger paresthesias therefore cannot be definitively linked to her reported repetitive injuries at work.

2) The worker’s current symptoms -- according to her -- include some persistent right digit IV and V paresthesias. She states (as recorded in the section “current medical history according to the worker”) that the symptoms have a reduced intensity and frequency compared to what she once experienced. This is an appropriate biologic gradient, however the expectation is that if the symptoms were workplace related the symptoms would reduce in intensity following the reduction of the aggravating workplace activity. This is not coherent as the worker has continued to experience these symptoms in the years following the time working at [the employer]. Therefore, another mechanism or arm behavior outside any work related trigger could be contributing to her ongoing presentation.

3) The worker reported in the first few medical assessments three potentially unique symptom complexes. It is my medical opinion that this multiplicity of symptoms cannot be explained by one diagnosis. As a number of physicians correctly identified, the most likely diagnosis of wrist pain and weakened grip strength is from a median neuropathy at the wrist (as in carpal tunnel syndrome). The possibility of tendonitis causing similar pain and dysfunction is also a reasonable diagnosis. However, stiffness and pain in all finger joints, as in articular symptoms is often explained by different conditions such as arthrosis or arthritis. In addition, the reports of intermittent paresthesias of digits IV and V can be best explained by an ulnar neuropathy in the elbow or forearm. The worker did not have a consistency of symptom reporting that is helpful for establishing causation of the reported work related activities to her symptoms.

4) Since the worker does not report one event that precipitated the onset of her symptoms the specificity of a workplace injury is more difficult to associate with her symptoms. While repetitive activities have been recognized as potential triggers of nerve tendon, or muscle injuries the relationship between the reported workplace events and her symptoms is weakened by the lack of diagnostic evidence (such as nerve conduction studies) to support the claim. Therefore, any presumed ongoing cause and effect relationship would likely be spurious.”

Analysis

The Panel, having reviewed all of the evidence including the medical reports submitted by the worker’s physician, the evidence of WCB Medical Advisors and the evidence of the independent medical specialist and after having listened to the oral evidence of the worker and her representative, has determined that the totality of the evidence, on a balance of probabilities, does not support a causal relationship between the worker’s injuries, and her employment duties.

In particular, the Panel is of the view that the worker’s description of her job duties does not describe repeated extrinsic pressure or hyperflexion of the elbow such as is commonly noted in causing ulnar nerve symptoms. The most significant duty which formed the focus of the worker’s submission regarding causation of her injury focused on repetitive use of a large knife by her right hand. We note, however, that the initial onset of the symptoms in this claim related to bilateral hand and wrist symptoms albeit more severe in the right hand.

Further, although the worker has reported experiencing intermittent paresthesia in her 4^th and 5^th digits, consistent with an ulnar nerve injury, this complaint was not initially reported. The temporal relationship of this symptom cannot be necessarily linked to her repetitive injuries at work. As well, the worker has continued to experience these symptoms even after ceasing to perform the repetitive work related duties.

Ulnar nerve injuries can occur from repeated extrinsic pressure or by hyperflexion of the elbow. The evidence does not, however, set out a history of such an occurrence. While the worker’s detailed evidence of her job duties does point to repetitive use of her right hand, the activity reported is not consistent with extrinsic pressure on or hyperflexion of the elbow.

Further, in his report dated January 31, 2007 the worker’s specialist stated that there was not a clear history of a hyperextension or sudden torque on the wrist.

Having reviewed all of the medical evidence, the Panel has placed the greatest weight on the opinion set out in the independent medical examination report of August 1, 2008 which expressed the opinion that the worker’s current condition is not a result of her former work duties. The Panel is of the view that the totality of the evidence supports the four points listed in support of that opinion, as set out above.

The worker testified in a very forthright and candid manner. She expressed regret because she enjoyed her job and she missed doing it. The Panel accepts her evidence of her job duties as described. Based on that evidence, and having reviewed the medical evidence, however, the Panel is unable to find specific elements of the worker’s employment duties such as to establish a causal connection between those duties and her injuries. On a balance of probabilities, therefore, the evidence does not support a causal relationship between the worker’s injury and her employment.