Decision #01/13 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Review Office of the Workers Compensation Board ("WCB") which determined that his left elbow condition was not caused by his employment duties. A hearing was held on November 22, 2012 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On December 16, 2011, the worker sought treatment from a physician for complaints of a sore left elbow that he had been experiencing for the past few months. The worker was diagnosed with tendonitis in his left elbow that developed over time. In the Incident Report the worker described the job duties that he associated with his injury as follows:

We scan products. I pick the product then scan it. Holding the scanner is what has caused the tendinitis. The scanner has a handle and sort of looks like a gun. It probably weighs about 1 lb. and a half. I hold the gun the entire shift. I have to squeeze the trigger every time I pick a product. I would squeeze the trigger say 80 times per hr. I hold the scanner with my left hand and hold the product with my right. I do this for eight hours per day, five days per week.

On February 10, 2012, the worker was contacted by the WCB to elaborate on the duties that he associated with his injury. According to the file notes, the worker explained that for the past four years he had been operating a scanner with a trigger mechanism and that the repetitive squeezing motion using one or two fingers of his left hand affected his elbow. The worker indicated that he used the scanner to scan codes during the entire 8 hour shift, with two half hour breaks. The worker noted that since January 2012 his duties changed, no longer requiring him to use the scanner, and his symptoms had improved since then. The worker indicated that symptoms may have started in the summer of 2011; that there was no change in his duties at that time; and that he didn’t know whether he first noticed his symptoms at work or elsewhere.

In a decision dated May 14, 2012, the WCB adjudicator advised the worker that his claim was not compensable. The adjudicator noted that the worker attributed his difficulties to the repetitive nature of his work but there was no workplace event or accident identified to cause his difficulties and there was no change or increase in his duties. The adjudicator was of the opinion that there was no causal relationship between the development of his left elbow pain and the worker’s employment. The worker appealed the decision to the Review Office.

In a decision dated July 23, 2012, Review Office confirmed the adjudicator's decision that the claim was not acceptable. Review Office was of the opinion that the evidence did not indicate that the worker’s left elbow condition was related to his employment. Review Office noted that the worker denied any precipitating event and could not confirm when his symptoms began or that they began at work and that the worker had performed the same duties for four years without any change. Review Office concluded that there was no evidence of direct trauma, no evidence of repetitive twisting of the wrist or external rotation of the forearm or combination of forceful and repetitive wrist movements typically recognized as being provocative of lateral epicondylitis. The worker appealed Review Office's decision to the Appeal Commission and a hearing was held on November 22, 2011.

Reasons

The issue to be determined by this panel is whether, on a balance of probabilities, the worker’s left elbow condition arose out of and in the course of his employment.

Applicable Legislation

The Appeal Commission is bound by The Workers Compensation Act (the “Act”) and Regulations and the policies of the Board of Directors. Section 4(1) of the Act provides that compensation is payable to a worker where “personal injury by accident arising out of and in the course of the employment is caused to a worker” [italics added].

Worker's Position

At the hearing, the worker, who represented himself, described the onset of his elbow problems. He explained that he was unsure when his elbow started hurting but he went to see his doctor in December 2011 and his elbow was probably hurting in the summer. The worker testified that he did not initially associate his problems with any of his duties at work until the physician asked about his employment and the worker advised that he used a handheld scanner. The worker testified that the physician thought that the trigger motion caused the pain.

The panel reviewed the duties performed by the worker with him at the hearing. The worker explained that he was employed by a wholesaler and his job required that he gather product from shelves to fill customer orders. The worker described his job as involving a number of steps for each order. The worker would first obtain the written order and enter it into his scanner by punching in the customer code and purchase order. The worker would begin to fill the order by wheeling a cart across the warehouse about 200 feet away to the area where product was stored on shelves. He would then retrieve each product for a specific order by lifting it from the shelf and putting it onto the cart. The worker would often have to take down a case of product, place it on his cart and open it up to retrieve the number of items specified in the order and return the case to the shelves. He would scan each item before placing it in his cart and then put down his scanner while he moved to the next location to retrieve a different product for the order. If multiples of a product were required for the order, the worker would scan the item once and type in the number of items required for the order.

Once all of the product for one order was gathered on the cart, the worker would put the scanner down on the cart and wheel it to the packing area, which was on the other side of the warehouse. The worker would put down his scanner while he packed the order, which involved lining the box with paper, placing the products inside the box, taping it up and labeling the box for shipment. The worker testified that he could spend 5 minutes or half an hour retrieving the product for a single order and the time to pack the order would also vary depending on the size of each order. This process of retrieving the product from different areas of the warehouse, scanning it and packing the order was repeated approximately 20 to 50 times each shift with the number and weight of each product per order varying depending on the order. The worker indicated that he spent 50% of his time per shift pushing the cart, walking about 20 kilometers each shift to retrieve and pack the products.

With respect to the use of the scanner, the worker’s evidence was that the scanner weighed about 1.5 pounds. He would hold the handle in his left hand with his four fingers wrapped around a 2 inch round handle with his thumb on the back of the handle and point the scanner at the barcode of product held in his right hand. The worker would use his index finger to squeeze the trigger to scan the product. The worker testified that very little pressure was needed to squeeze the trigger. He estimated that in an hour he would use the scanner to scan a product about 100 times.

Analysis

Lateral epicondylitis may be associated with occupational risk factors as well as with non-work related factors. Having reviewed the worker’s evidence, the panel is of the opinion that the worker’s job duties do not involve sufficiently repetitive or forceful movement or extension and rotation of the wrist that may commonly be associated with this type of injury.

The panel notes that the tasks carried out by the worker during the course of his shift involved a wide range of movement including walking, lifting, pushing, packing and scanning with the ability to rest and pace himself throughout his shift. The scanning activity was carried out on an intermittent basis and was not done continuously to scan large numbers of product, as the worker stopped after scanning each product to locate and retrieve additional product. The scanner was also very light, and negligible pressure was used to squeeze the trigger. There was no vibration or forceful grip required, and triggering involved minimal effort and was relatively infrequent. After reviewing the worker’s evidence of his job duties, we are unable to find that they involved the type of occupational risk factors associated with the development of lateral epicondylitis.

Therefore, the panel finds, on a balance of probabilities, the evidence does not support a determination that the worker’s elbow condition is related to his employment duties. We conclude that his injury did not arise out of and in the course of his employment, and the worker’s appeal is denied.

Panel Members

M. Thow, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. Thow - Presiding Officer

Signed at Winnipeg this 8th day of January, 2013

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