The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

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

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted. These sections provide that the worker must have suffered a personal injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

Policy 44.40.10 Evidence of Disability (the "Evidence of Disability" policy) sets out the requirements to establish a worker has been injured and provides that:

A. Policy

Compensation benefits are payable only where there is medical, or similar, evidence of a disability arising from a compensable incident or condition.

Employer's position

A representative of the employer appeared at the hearing. He stated that the worker had been performing the same job duties for a number of years, has had symptoms for one year prior, and that as there was no diagnosis on file, a cause and effect relationship cannot be determined. In particular, there was no specific incident, there had been no significant change in duties, and the forearm activities associated with the duties do not satisfy the criteria for repetitive strain injury. The employer stated that the totality of the evidence fails to establish any scientific relationship between the worker's bilateral wrist problems and his employment duties. Even with a diagnosis, the panel would have to connect the worker's duties with forearm activities that are known to cause a repetitive strain injury.

Worker’s position

The worker was assisted by a union representative at the hearing. Their position was that the worker's wrist conditions are related to his job duties as they are repetitive in nature and involve motions of the wrists such as twisting, forceful gripping, pulling, pinching pressure and extreme full wrist flexion/extension especially when shoveling, raking and grabbing animals. Further, the worker had complained of bilateral wrist problems to various supervisors for which he wore wrist supports in the workplace to help with his ongoing difficulties. The representative also acknowledged that the worker had first sought treatment for wrist pain in March 2008 and again following a specific injury in January 2009.

Analysis:

The issue before us is claim acceptability. In order for the appeal to be successful, the panel must find that the worker’s bilateral wrist and hand injuries arose out of and in the course of his employment. On a balance of probabilities, we are able to make that finding.

The employer submitted literature titled "Underlying causes of bilateral wrist pain" together with an internet article examining repetitive strain injuries, terminology and causes. The employer stated that the test for repetitive strain injuries involves high force repetitive activity with twisting, gripping, pulling, pinching, pressure and extreme full wrist flexion and extension. As well, the activities would have to involve these motions on a fairly frequent basis to draw a connection between those activities and the repetitive strain family.

The employer indicated that the literature supports numerous non-vocational incidents, some systemic and some degenerative that could have been operating during the time frames indicated, that have since resolved. He noted in particular that the literature states:

"Although tendonitis and tenosynovitis are discrete pathophysiological processes, one must be careful because they are terms that doctors often use to refer to non-specific or medically unexplained pain which they theorize may be caused by the aforementioned…"

The employer also submitted that, "the mere fact that the worker noted symptoms while performing duties at work does not necessarily mean that this caused his bilateral problems" nor does symptoms prior to May 2009 establish a cause and effect relationship between his duties and the bilateral medical problem.

The worker provided evidence at the hearing related to his job duties on a typical day and the various areas he had worked in during the period March 2008 and May 2009. He noted that he had worked in most of the areas prior to March 2008 but at that time he was assigned to a specific area he called the "North Lane" which he stated:

"…that was the final straw, like that was a lot of work there. That would have caused me grief."

He said he would check the animals, shift them to new corrals and then clean the area and replenish their food. He demonstrated how he picked up feces by holding a shovel in his left hand with an overhand grip to stabilize the handle and balance it in the bend of his elbow. He would hold a standard fan rake tightly in his right hand with the handle tucked under his forearm and over his bicep so it wasn't loose. He would use a rapid aggressive downward striking motion similar to a bouncing action to dislodge the feces, rake them onto the shovel and transfer them to a wheelbarrow. Full wheelbarrows were taken to a disposal bin. Some days it took a full eight hours to clean all the areas providing there was no stoppage for other tasks.

The worker indicated that the animals' feces varied in size from one inch lumps to large piles located throughout the entire enclosures. He would also rake the area around the feeders to pick up hay and alfalfa on the ground. In winter, feces would be frozen and an ice scraper or pitch fork was used to dislodge them.

The worker said he would feed the animals with a few bales of hay for larger animals while smaller ones would get one half a bale and/or up to four pails of pellets. Straw was used for bedding which was significantly lighter to put down but if the old straw was soiled, removal was quite heavy. The hay and alfalfa bales weighed 60 or 90 lbs depending on their size. He estimated that he put out 6 - 8 feed bales per day.

He tended to approximately 60 hoof stock in six pens which required cleaning each day. He estimated the cleaning to be 65% of the work and the remainder included hauling bales of hay, pails of pellets and five gallon pails of water. The worker indicated that the largest enclosure was just over one acre and others varied from 500 by 1,000 feet down to the smallest of 100 by 100 feet.

Regarding the catching of animals, the worker stated that when the veterinarian was vaccinating the animals, he and others would have to restrain the animals by grabbing the smaller ones by their fur and pinning them to a wall, a corner or a fence. To capture larger animals he had to be doing "more like a flying headlock…You just grab them and you lock your arms and then you roll him and then hopefully two or three people jump on him…and you hold him until the vet says no more." During this activity the worker indicated his wrists and arms are in every position and he used all of his grip strength. The animals are caught one or two times each per year for vaccination, tuberculosis testing and hoof trimming.

The worker's evidence was that his main symptoms were pain in his baby and ring finger. He also had a loss of strength, difficulties shaking hands, playing with his children, signing his name, and noticed the soreness seemed to be getting worse. Despite wearing his wrist braces while working the whole workday, he felt he wasn't healing. He became concerned when he was in pain by the end of the week, and then after two days off it was not so bad. Then after five more days it was hurting a lot again. He realized there was something really wrong.

The panel reviewed the medical reports on the file from the worker's physician and the treating physiotherapist. The physician's clinical findings on May 15, 2009 were "unable to oppose R 1^st and 5^th finger, power L 5^th finger - 3/5, R wrist ROM tender over CT area increased with dorsiflexion" and noted the worker reported weakness and right ulnar hand ache plus pain at the left wrist with movement. These findings led to the diagnoses of "left ulnar neuropathy/? right carpal tunnel syndrome."