Decision #142/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that her claim for compensation was not acceptable as a relationship could not be established between her medical condition diagnosed as right lateral epicondylosis and her job duties of sorting mail. A hearing was held on November 8, 2012 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB on November 9, 2011 for right elbow discomfort which she related to the repetitive nature of her work duties that involved sorting envelopes and placing the envelopes into mail boxes. The worker reported that she first noticed symptoms in September 2011 and by October 2011, her symptoms were getting progressively worse. She had severe pain in her elbow and loss of strength in her hand. The worker noted that the keyboard mouse toggle button aggravated the muscles in her right arm.

The Employer's Accident Report indicated that the worker had been told that her pain was due to the repetitive motions used in sorting mail at her office and that the investigations showed that the worker was adhering to all safety protocols in the office.

In a physiotherapy report dated November 16, 2011, the worker's accident description was: "…sorting mail and felt pain in her elbow." The diagnosis rendered by the physiotherapist was a right wrist extensor strain.

On November 17, 2011, the worker advised a WCB adjudicator that she worked full-time at her current position since January 2011. Her job entailed sorting mail and parcels on a daily basis from 8:00 a.m. to 10:30 a.m. If a customer came in, she would stop sorting mail to serve the customer. The worker believed that the repetitive motion of sorting mail was the cause of her difficulties and the motion of flicking her wrist was also a contributing factor. The worker noted that there were no changes to her job duties or an increase in workload. She would pre-sort the mail and then place the mail into four different cubby holes.

On November 21, 2011, the employer's representative provided the WCB with details of the worker's job duties. The representative stated: "In order to accept that [the worker's] pain is the result of work place activities, we must be able to determine a cause and effect relationship. We cannot do this without evidence of an incident or a recent change in her daily activities. Further, pain does not constitute a workplace injury without the employee being able to identify a work related incident. We suggest that this incident does not meet the criteria set out in policy 44.05.10 of the WC Act which expands on the definition of an "accident" under GECA…"

A WCB medical advisor reviewed the file on December 1, 2011 at the request of the WCB adjudicator. The medical advisor stated that the current diagnosis was more likely a right lateral epicondylosis. He noted that this diagnosis most often came about idiopathically and there was no well established relationship between the diagnosis and occupational influences. He said the actions related to this condition involved combined force and repetition (eg. forceful grasping), carried out uninterrupted over a substantial part of the work day.

By letter dated December 5, 2011, Rehabilitation and Compensation Services ("RACS") advised the worker that her claim was not acceptable. The adjudicator made reference to the worker's job duties and the opinion expressed by the WCB medical advisor that the likely diagnosis was right lateral epicondylosis and that the condition could arise idiopathically, and it could be associated with high force such as forceful grasping combined with high repetition. The adjudicator concluded that there was insufficient exposure to high force and high repetition in the worker's job duties and therefore a relationship between her right elbow injury and her job duties could not be established.

New medical information was placed on file subsequent to the adjudicative decision dated December 5, 2011. It stated that the worker had a one month history of right elbow pain at the distal humerus. The worker had decreased strength of the right hand and difficulty using squirt bottles and opening things. This was noted after lifting heavy boxes at work.

In a letter dated January 31, 2012, the worker was advised by RACS that the new medical information had been reviewed and that there was no basis to change the initial decision of December 5, 2011. On March 5, 2012, a worker advisor appealed the decision to Review Office on behalf of the worker.

On May 18, 2012, Review Office determined that the worker's claim was not acceptable as it was unable to establish that the worker's condition arose out of her employment. Review Office considered the nature of the worker's job duties and found that there was a lack of significant resistance or forceful gripping in her mail sorting duties. It noted that epicondylitis was most prevalent among individuals between 40 and 50 years of age and that the exact cause of the condition was often unknown, although it was most generally associated with racquet sports. On June 7, 2012, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was held on November 8, 2012.

Reasons

Applicable Legislation and Policy:

The worker is employed by a federal government agency or department and her claim is therefore adjudicated under the Government Employees Compensation Act (“GECA”). Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “Act”). The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

WCB Policy 44.05.10, Definition of "Accident" under the Government Employees Compensation Act (the "Policy") sets out principles to apply when interpreting the GECA. The Policy states, in part:

The definition of "accident" in GECA will be given a broad interpretation. Therefore:

…

3. The gradual onset of a personal injury, including an injury resulting from a gradual process or repetitive injurious motion will be considered an "accident".

The worker’s position:

The worker was represented by a worker advisor at the hearing. It was submitted that the worker's diagnosis of right elbow epicondylitis was attributable to the performance of her job duties, and in particular, pre-sorting letters using a "flicking motion with her wrist." This was a repetitious activity which contributed to the gradual onset of her right elbow condition. It was submitted that lateral epicondylitis is caused by overuse, strain or injury to the tendon that attaches to the bone on the outside of the elbow. The tendon is attached to the muscle that bends the hand backwards from the wrist. This results in tiny microscopic tears in the tendon that causes inflammation and pain in the tendon. The activity of pre-sorting mail either strained or injured the worker's right arm tendon and caused the symptoms to develop. As she continued to perform her duties, the condition became further aggravated by the activity.

At the hearing, the worker described her job position and the duties she performed. She had held various positions with the employer since 2003, many of them part time. On January 3, 2011, she was hired into a full time position. In this position, she was responsible for sorting all of the mail at her location (approximately 200 mail boxes), processing incoming parcels, computer work (answering emails and ordering), and serving customers at the counter. The task which the worker found particularly painful was pre-sorting mail into boxes. She would hold the mail in her left hand then sort the envelopes into boxes with a flick of her right wrist, which made the task quicker. She also identified using the mouse toggle on the keyboard as an activity which caused her difficulty. The worker would use her index or middle finger to manipulate the mouse toggle to move the cursor on the computer screen. She found that her arm became sore when she did this activity.

When asked how her time was divided among her duties, the worker estimated that it would take about 2 ½ hours to sort the mail. Of that time, about ½ to ¾ of an hour was spent pre-sorting between 800 to 1000 pieces of addressed mail. The worker's shift started at 8:10 am. When she came in, she would do half of the pre-sort (i.e. 15 to 20 minutes), then take a break from sorting and work on parcels (daily average was 12 to 20 parcels which would take about 10 minutes), then return to finish the pre-sort duties. She would then sort the mail into the individual mail boxes. Generally, she would be finished sorting the mail by 10:30 am. For the balance of the day, her activities would be varied, including serving customers at the counter, answering the phone, some computer work, and administrative paperwork. The worker estimated that she would have approximately 25 customers at the counter each day.

The employer’s position:

The employer's workplace safety and health WCB specialist appeared at the hearing. The employer's position was that insufficient evidence existed to support that the worker's epicondylitis was related to occupational influences. The sortation of mail did not require high force repetitive activity involving motions of the wrist or elbow such as twisting, gripping, pulling and pinch pressure. The employer was of the position that the worker's sortation duties for 2 ½ hours per day did not constitute a frequency of a constant or repetitive nature which would cause her to develop right epicondylitis. It was submitted that the definition of a constant or repetitive frequency was 67 to 100 percent of the workday or more than two thirds of the workday. This would require longer than 5 ½ hours per day and extend up to eight hours per day. The employer therefore submitted that the appeal be denied.

Analysis:

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

The panel has considered both the nature of the worker's duties and the time spent performing each activity. In our opinion, the activities that the worker was performing in the course of her employment were not the type which would be causative of damage to the lateral epicondyle. In addition to the general absence of forceful grasping and high repetition, the worker was not required to sustain any particular activity for an extended period of time. The pre-sort duties only took half to three-quarters of an hour and the performance of these duties was broken up by switching to parcels half way through. There was a break between duties which allowed for a rest cycle. The balance of her day was varied and did not involve any duties requiring a significant degree of repetition. The computer work using the mouse toggle was minimal.

Overall, the panel feels that there was very limited workplace exposure and we are not satisfied on a balance of probabilities that the worker's job duties either caused or contributed to her lateral epicondylitis. While performance of her duties may have triggered painful symptoms in her elbow after the idiopathic onset of her lateral epicondylitis, we do not accept that they worsened her condition by causing further damage to the tendon.

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
B. Simoneau, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 27th day of December, 2012

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