Decision #02/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his left elbow condition was not related to his work duties and therefore his claim for compensation was not acceptable. A hearing was held on December 10, 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 December 12, 2011 for left elbow pain which he related to his job duties that involved stretching, twisting, pulling and pushing due to usage. The worker was already involved with WCB at that time for another claim for right upper extremity problems.
When seen for treatment by a chiropractor on December 6, 2011, the worker was diagnosed with acute left lateral epicondylitis. The chiropractor reported that the worker's condition was related to overusing his left arm compensating for his right arm.
On December 12, 2011 the worker was diagnosed with left tennis elbow by his treating physician. The physician reported that the worker had left lateral epicondyle pain for several weeks and was waiting for surgery regarding his right tennis elbow.
On December 23, 2011, the worker spoke with a WCB payment assessor. The worker indicated that he started to miss time from work due to his left arm around December 14 or 15, 2011. The worker indicated that he was assaulted at his workplace in the morning that same day; however, his time loss due to the left arm began just prior to that. The worker indicated that his case manager was at his workplace on December 6, 2011 and he had asked the case manager what he should do because his arm was sore and he overcompensated for his right arm from his last claim and now both arms were affected.
On January 4, 2012, the worker advised his WCB adjudicator that he was right-hand dominant and there was no specific accident. He said he used his left arm to perform his work duties which he had done for the last three to four months. He told his foreman that his left arm was hurting and he was moved to the main plant. The worker noted that his left arm difficulties began about 10 weeks ago. His job duties involved receiving stock, packages and repackaged items.
On January 12, 2012, the employer's representative advised the WCB that he had no information about the worker being assaulted at work in December 2011 as nothing was reported. He noted that the worker's first day missed from work was December 19, 2011. In the summer of 2011, the worker was putting small parts away but nothing over 50 pounds. The worker also was in the warehouse in the summer of 2011 and his job entailed receiving stock, packages and repackaged items. The worker was using both hands/arms but did not do lifting greater than 10 pounds with his right arm. The representative stated that the worker's duties since November 2011 were labeling work areas and tools, cleaning shelves, taking small parts off the shelves and labelling parts in the warehouse. There was no repetitive work. The representative noted that the worker made ongoing complaints about both arms from November 11, 2011 until going off work.
In a memo dated January 18, 2012, a WCB sports medicine advisor indicated that the development of lateral epicondylosis was associated with activities requiring repetitive forceful grasping with the affected arm, as well as activities requiring repetitive resisted wrist extension. The medical advisor reviewed the workplace activities that were outlined on January 12, 2012 and was of the opinion that they were not concordant with those associated with the development of lateral epicondylosis. He concluded that the worker's left lateral epicondylosis was not accounted for by the reported workplace activities in November or December 2011.
By letter dated January 19, 2012, the worker was advised that a relationship had not been established between the development of his left elbow difficulties and his employment activities and therefore his claim for compensation was not acceptable. The case manager relied on the opinion expressed by the WCB medical advisor on January 18, 2012 in making his decision. On April 27, 2012, the worker appealed the decision to Review Office.
On June 21, 2012 Review Office confirmed that the claim was not acceptable. Review Office noted that lateral epicondylitis developed from repetitive resisted or forceful wrist extension or impacting motions such as using a screwdriver, hammering, painting and others. Lateral epicondylitis was commonly seen in people who overuse their forearm muscles such as plasterers, mechanics or painters. Review Office was of the opinion that the duties the worker performed did not involve the anatomical movements that were required for the development of the condition. Review Office gave significant weight to the opinion expressed by the WCB medical advisor in making its determination. On August 27, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
In considering appeals, the Appeal Commission and its panels are bound by 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 by the WCB, and state that the worker must have suffered an 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.
This appeal deals with claims acceptance. 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 his employment.
Worker's Position
The worker explained his reasons for appealing the WCB decision. He advised that he had no problems with his left arm prior to November 10, 2011. However, due to an injury to his right arm, he was assigned to a one-handed position which he started on November 10. He kept his right arm in a sling, so he had to use his left arm extensively. He said the position involved significant repetition and resulted in overuse and ultimately in lateral epicondylitis of the left elbow.
The worker described the duties that he performed in this position. He worked in the "warehouse" where his job was to label parts. This involved using a keyboard to enter a part number, printing a label and then attaching the label to a plastic "zip-lock" type bag. He would place parts into the bag and then place the bag on a shelf. He usually worked at a table. The parts varied in size, from light bulbs to steel rollers. On occasion, he had to label heavier or more awkward-sized parts. He said it was difficult to pickup and place these parts in the plastic bag. The example provided at the hearing was steel rollers which he estimated weighed approximately 20 pounds each. He had to label crates of rollers on two occasions. The amount of labeling varied but on some days he labeled more that 500 parts. When work was slow, the worker swept the worksite.
The worker said that as he performed the repetitive task of labeling parts, he began to feel pain in his left elbow just above the elbow bone. He described it as a burning sensation and said it was the same feeling that he had in his right elbow. Regarding the cause of the injury the worker said that "The labeling wasn’t so bad. It was, what got me was putting the parts into the bag. You know, I had to take them out of our supplier’s material."
As he did not want to permanently injure his left elbow, he advised the employer and filed a claim. At the hearing he said the pain began in his second week in the warehouse. He said the duties involved movements associated with the causes of lateral epicondylitis. In his injury report he said the job involved stretching, twisting, pulling and pushing.
Regarding the current condition of his arm, he said that it still becomes aggravated but that he rested it while he was recovering from the surgery to his right arm.
The worker said there were many causes of lateral epicondylitis, including overuse and repetition. He said that tennis elbow is not simply related to playing tennis.
The worker said that when he complained about the left arm pain he was removed from the position. This occurred on or about December 6, 2011. The worker said that the injury occurred at work and that he wanted it recognized, in case down the road, the condition worsened.
Employer's Position
The employer was represented by its Occupational Health & Safety ["OHS"] Specialist and its Human Resources Reporting Compliance Specialist. The OHS specialist provided details of the worker's job placement and background information on the worker's work history, particularly relating to a 2011 injury to the worker's right arm. The representative advised that there were no quotas or time limits imposed on the worker while doing the labeling job.
The representative advised that the employer agreed with the WCB, that the claim is not acceptable.
Analysis
The issue before the panel is whether the worker’s claim arose out of and in the course of his employment. In order for the appeal to be successful, the panel must be satisfied on a balance of probabilities that the worker's left elbow condition was caused by the worker’s job duties.
After reviewing the evidence as a whole, including the job duties, onset of symptoms and worker's evidence at the hearing, we are unable to find, on a balance of probabilities, that there is a causal connection between the left elbow condition and the worker’s employment. We are unable to find that his duties over the period from November 10 to December 6, 2011 caused his left elbow condition.
In arriving at this decision, we rely on the following facts:
· on November 10, 2011, the worker began working in a one-handed position using his left hand/arm as a result of an injury to his right hand.
· the duties involved labeling parts and sweeping the floor with a push broom.
· the worker labeled from 100 to 500 parts each day. There was no production quota, and the worker could work at his own pace.
· the parts varied in size and weight, with rollers weighing approximately 20 pounds being one of the heaviest parts. The worker labeled rollers on two occasions.
· between November 10 and December 6, the worker worked approximately 14.5 days at the one-handed duties.
The panel is unable to find that the worker's duties in the warehouse in November and December 2011 included the type of activities which would cause lateral epicondylitis over a sufficient time to develop this condition. The panel was not able to identify significant repetition, use of force, awkward positioning, stressful gripping, or other movements associated with the cause of lateral epicondylitis. The quick onset of the condition soon after starting the one-handed position on November 10, 2011 also suggests that the condition was not related to his job duties.
In reaching this decision, the panel accepts the opinion of the WCB medical advisor set out in a memo dated January 18, 2012. The medical advisor reviewed the medical information on file and the worker's job duties at the time the injury occurred, and concluded that the nature of his workplace duties is not concordant with those associated with the development of lateral epicondylitis.
The panel finds, on a balance of probabilities, that the worker's left elbow condition did not arise from the worker's job duties. The worker's claim is not acceptable and accordingly his appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 9th day of January, 2013