Decision #31/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker did not suffer a personal injury by accident arising out of and in the course of her employment. A hearing was initially held on August 30, 2011 to consider the matter and the hearing was reconvened on January 10, 2012.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In October 2008, the worker filed a claim with the WCB for left elbow pain that she related to her employment activities as a sales associate in a retail store. The worker provided the WCB with a detailed description of her job duties. The worker noted that she worked with the accident employer in British Columbia for nine years and was now working in Manitoba with the same employer. She said the pain in her elbow started to get worse around Christmas of 2007. By January 2008, she had trouble bending her arm. She attended a walk-in clinic and was told she had tendinitis and needed a cortisone injection. After receiving the injection, she missed a couple days of work and her arm felt better. She then returned to her regular job duties but by May 2008, her arm started to bother her again.

The accident employer submitted that the worker had acute tendonitis in her left elbow that commenced in 2007 while employed for the company in British Columbia.

On October 16, 2008, the worker advised the WCB that she submitted a claim to Work Safe Injury Board of British Columbia but it was denied due to a lack of medical treatment.

On November 18, 2008, the worker spoke with a WCB adjudicator and the following information was documented:

  • the worker was employed for nine years as a full-time sales associate in British Columbia.

  • she held clothes with her left arm and placed items onto racks with her right hand. She carried at least 7 to 15 items at a time over her left arm depending on how busy the store was.

  • the worker related her symptoms to a combination of job duties such as carrying clothes, putting items away, changing signage, unpacking merchandise, fitting customers, etc. The jobs did not involve high force but the weight from carrying all the clothes on the left arm damaged her elbow.

  • the onset of elbow pain started around August 2006. She did not seek medical treatment as the symptoms were tolerable.

  • based on changes in store policy, the job demands increased by 100%. She had to carry and move huge boxes from the stock room and unpack boxes with an Exacto knife (right hand cut while left hand held the box). There was no further change in job duties until her transfer to Winnipeg.

  • the last day worked in British Columbia was mid September 2007 and she started work in Winnipeg on November 2, 2007. Her left elbow symptoms never went away and they continued to bother her. Her job duties in Winnipeg were totally different and much lighter compared to British Columbia. She worked an 8 hour shift in the fitting rooms. Her left arm pain never went away but it was stable and tolerable. She would feel an increase in severity usually after her shift despite performing lighter work. In December 2007 her arm became extremely painful but there was no swelling.

  • Between December 2007 and May 2008, the worker noted that she was constantly banging her elbow on a pole when working in a particular stock room and that this caused an increase in her elbow symptoms. Because of the constant banging and increase in symptoms, she decided to go for treatment and to have the cortisone injection. The worker advised that she reported her difficulties to maintenance staff, a co-worker and her supervisor.

On December 9, 2008, the worker was formally advised that her claim for compensation was not acceptable as an accident arising out of and in the course of her employment had not been established. The adjudicator noted that the personnel identified by the worker were unable to confirm any reports of a specific accident and the maintenance staff were unable to confirm the presence of a pole inside the stock room. It was felt that the evidence did not support that the worker sustained an injury to her elbow as a result of repetitively banging it on a pole inside the stock room.

On April 16, 2009 a worker advisor, acting on behalf of the worker, submitted that the worker's previous left elbow difficulties constituted a pre-existing condition and that the worker sustained an aggravation of this pre-existing condition related to her work duties in Manitoba. It was noted that the worker was diagnosed with lateral epicondylitis/tendonitis and that her symptoms improved in the 5 to 6 week period that she was off work prior to starting her employment in Manitoba. After commencing employment in Manitoba, the worker reported that her symptoms progressively worsened. Her symptoms further increased as a result of banging her elbow on a metal pole in the stockroom on numerous occasions while carrying out stock. The worker advisor provided a statement by a co-worker to confirm that the worker struck her elbow at work on at least one occasion. She noted that the co-worker herself had experienced several similar incidents as a result of limited space available to navigate around boxes of stock.

In a further submission dated April 20, 2009, the worker advisor noted that although the worker had some left elbow difficulties while working in British Columbia, the symptoms were not so significant that she missed time from work or felt the need to seek medical treatment. The worker explained that she only mentioned her left elbow symptoms once in passing to her attending physician in BC at her last appointment before moving to Manitoba. She was not specifically seeking medical treatment for the elbow at that time nor did her doctor conduct an examination of the left elbow or make chart notes in this respect. The worker advisor indicated that it was only after commencing employment in Manitoba that the worker's symptoms progressed to the point that she required medical attention and time off work. This information supported that the worker sustained an aggravation of her pre-existing condition as a result of her work duties in Manitoba.

By letter dated April 28, 2009, the worker and worker advisor were notified that the WCB remained of the opinion that the worker's claim for compensation was not acceptable. The adjudicator outlined the position that the worker's elbow condition was diagnosed prior to her employment in Manitoba and that she experienced increasing elbow difficulties prior to starting her job in Manitoba. She said there was no evidence to support that the worker's employment activities in Manitoba contributed to the increase in her symptoms. The adjudicator acknowledged the co-worker's statement that the worker banged her elbow on at least one occasion that she was aware of. The adjudicator indicated that she was unable to establish that the worker suffered an aggravation as a result of her employment activities or from the one episode of banging her elbow.

On July 6, 2009, the worker advisor appealed the above decision to Review Office. The worker advisor requested Review Office to grant acceptance of the worker's claim as an aggravation to a pre-existing condition in accordance with WCB Policy 44.10.20.10, Pre-Existing Conditions.

A submission from the employer's representative to Review Office dated July 24, 2009, outlined the position that the decision rendered by the case manager was appropriate and consistent with WCB legislation and policy.

On July 31, 2009, Review Office confirmed that the claim was not acceptable. Review Office stated that to accept the worker's claim as an "aggravation" of her pre-existing elbow condition, there must be an "accident". Based on its review of the evidence, it was not able to make this finding. Review Office stated that it was unable to establish a precipitating event or trauma that was responsible for the worker's chronic lateral epicondylitis and need for treatment and time loss. On June 8, 2010, the worker's representative appealed the decision to the Appeal Commission and a hearing was held on August 30, 2011.

The hearing was commenced but was subsequently adjourned to allow the panel to request additional medical information from the worker's healthcare providers. The requested medical information was later received and was forwarded to the interested parties for comment. On January 10, 2012, the hearing reconvened.

Reasons

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 left elbow condition arose out of and in the course of her employment.

The worker’s position:

The worker was represented by a worker advocate at the hearing. It was submitted that the WCB erred in determining that the worker's left lateral epicondylitis did not qualify as an aggravation of a pre-existing condition due to the absence of a precipitating event. It was acknowledged that, in all likelihood, the original cause of the worker's left lateral epicondylitis was the workplace activities while working for the same accident employer in British Columbia. The worker's position, however, was that her pre-existing lateral epicondylitis was aggravated by her work in Manitoba. The pre-existing left elbow problems did not cause her to miss time from work while employed in British Columbia and the symptoms had subsided during her several weeks off work while moving to Winnipeg. Within a few weeks of resuming work in Winnipeg, the lateral epicondylitis flared to the point where the worker had to seek medical attention at a walk-in clinic. A cortisone injection improved her condition and she was able to work without a great deal of difficulty until May 2008, at which point the pain and swelling had increased to a level far greater than she had experienced at any time in 2007. The worker's advocate noted that it is quite common for an aggravation of a pre-existing condition to occur with a much lower level of trauma than it would have taken to cause the original injury and repetitive strain injuries are particularly notorious in that regard. The WCB determined that because the worker's duties in Winnipeg were lighter than in British Columbia, because there was no "precipitating event" and because the worker's condition did not improve when she went on reduced hours that the worker did not meet the criteria for an aggravation of a pre-existing condition. The worker advisor submitted that the WCB was wrong on all three counts, and asked that the worker's claim be accepted as an aggravation of a pre-existing condition under WCB Policy 44.10.20.10.

The employer’s position:

A representative from the employer participated in the hearing by teleconference. The employer's position was that, on a balance of probabilities, the worker's elbow injury did not arise out of and in the course of her employment in Manitoba. The evidence on file showed that the worker had a long-standing elbow problem prior to arriving in Manitoba. What followed after she moved was a continuation of the unresolved elbow impairment she had when she left British Columbia. The duties in Manitoba would not normally be expected to cause an elbow injury. The work was not repetitious in nature, there were no significant physical forces involved, and the work did not involve any sustained forces on the elbow. In fact, the work in Manitoba was actually quite light. Further, during her tenure of employment in Winnipeg, the worker only worked on a part-time basis. In the 30 week period she worked in Manitoba, the worker averaged about 16 hours per week and the employer submitted that with an average of 16 hours, the worker did not have significant exposure to the work duties. As a part-time employee, she would have had shorter duration shifts and not likely have worked for two or perhaps three days in a row, with several shifts off in between. When this limited exposure is coupled with the light nature of the work, it was submitted that on the balance of probabilities, the work was not sufficiently repetitive or sufficiently sustained, or sufficiently injurious to have given rise to the elbow injury to have aggravated an already problematic elbow condition.

Analysis:

The issue before the panel is claim acceptability and whether the worker’s left elbow condition arose out of and in the course of her employment in Manitoba. In order for the appeal to be successful, the panel must find that the worker’s condition was caused by an accident she suffered while in the course of her employment. On a balance of probabilities, we are not able to make that finding.

The evidence is that the worker commenced working in Manitoba on November 2, 2007. At the hearing, the worker provided specific detail regarding the duties she performed at the Winnipeg location. She described her duties as follows:

  • The worker's title was a bra fitter.
  • The worker was in the lingerie department and she spent most of her time in the fitting rooms.
  • There were approximately nine fitting rooms and she was responsible for helping to fit customers with bras and to keep the fitting rooms clean.
  • To fit a customer, the worker would first measure the customer with a tape measure then select a number of different styles for the customer to try on.
  • Fitting would involve physically assisting customers in making sure the bra was correctly in place. It was described as a two handed job which required pressure, force, flexing and changing. There may be a lot of pulling and clenching involved with some of the larger foundation garments.
  • The merchandise would either be on hangers or come in boxes.
  • The worker would typically use her dominant right hand to take things off racks and use her left hand to hold items.
  • The work was busy and at a very fast pace.
  • The fitting rooms were also used for women's clothing (coats, dresses, jeans). The worker would have to put clothing back on hangers and return them to the racks on the sales floor.
  • Heavier work would include carrying multiple items of clothing draped over her left arm in a horizontal position. She would also have to pull a metal rolling rack full of clothing.
  • While in Winnipeg, the worker did some stockroom work which entailed lifting 2 foot square boxes of bra stock and opening them with a knife (held in the right hand).

The worker's diagnosis is lateral epicondylitis/tendonitis of the left elbow. This condition had already been identified prior to the worker's move to Manitoba. She saw a family physician in British Columbia in September 2007, and his suggestion to the worker was that she may need a cortisone injection. In the panel's opinion, this recommendation suggests that there was already a significant problem which warranted more than purely conservative measures. The panel finds that there was already a fairly well-advanced lateral epicondylitis/tendonitis present in the worker's left elbow. The condition was symptomatic and persistent prior to her move to Manitoba.

After moving to Manitoba and commencing employment, the worker described a worsening condition and by early December, she sought medical attention and had a cortisone injection in her left elbow on December 5, 2007. This was after approximately one month of employment. The employer provided a summary of the worker's weekly hours for the month of November, 2007. From November 4 to 10, she worked a total of 9.5 hours. From November 11 to 17, she did not work. From November 18 to 24, she worked 10.5 hours and from November 25 to December 1, she worked 13 hours. The worker's evidence at the hearing was that she would typically work between 4 to 8 hour shifts.

The panel has considered both the nature of the duties performed by the worker in Manitoba, and the number of hours that she worked. In our opinion, the activities that the worker was performing in the course of her employment in Manitoba were not the type which would be causative of further damage to the extensor tendon. While we acknowledge that the duties may have involved painful movements, we do not feel that they would cause further damage to the tendon. In other words, while the Manitoba duties may have triggered painful symptoms in her elbow, they did not worsen the worker's lateral epicondylitis/tendonitis. When this finding is combined with the fact that the worker had very limited work exposures in November 2007 (averaging less than 10 hours per week), we are unable to find that the worker's Manitoba work duties either caused or aggravated her left elbow condition.

On the WCB file and at the hearing, there was some argument directed to the fact that the worker banged her elbow on a pole in the stock room and it was alleged that this contributed to the problem. At the hearing, the worker acknowledged that she did not place a lot of significance on the pole. She felt that the condition was already getting worse and while the banging did not help the condition, she did not feel it caused it. The panel appreciates the worker's forthrightness with respect to this issue as we also felt that the pole was not significant in the development of the worker's elbow condition. We therefore find that the banging of her elbow on the pole had no causative relationship to the worker's lateral epicondylitis.

For the foregoing reasons, the panel finds that the worker's claim is not acceptable. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 2nd day of March, 2012

Back