The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her right thumb condition was not aggravated or enhanced by her work duties.

A hearing was held on April 16, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a right thumb injury with the accident date of March 19, 2013. The worker reported that she had been doing her job as unit assistant for about 7 to 8 years. Around March 19, 2013, she noticed that her right thumb was sore and red. Her job entailed using her thumb to clamp bloodlines. She did 24 machines in an 8 hour shift. The worker said she told the educator about her thumb and she was advised to use both thumbs instead of one. The worker indicated that she tried using both thumbs but it still caused pressure to her right thumb.

In April 2013, a WCB adjudicator contacted the worker to gather additional information related to the job duties which she felt had contributed to her thumb difficulties. The employer also provided the WCB with details regarding the worker's job duties and the worker's reporting of a thumb injury. This included a copy of a November 2012 ergonomic assessment.

In a decision dated April 24, 2013, the WCB determined that the worker's claim for a right thumb injury was not acceptable. The adjudicator referred to medical information on the worker's file dated March 25 and 26, 2013 which showed that the worker had pain and swelling in her right thumb and a pre-existing condition of osteoarthritis ("OA") of the hands. X-ray results showed asymmetric narrowing of the interphalangeal joint of the right thumb(s) consistent with OA. The adjudicator indicated that the WCB could not establish a direct relationship between the development of the worker's symptoms diagnosed as OA to her work activities. There were no reported increases or changes in the work performed and no specific event was identified.

In June 2013, the Worker Advisor Office provided the WCB with information to support that the physical requirements involved with clamping lines on machines had aggravated the worker's previously asymptomatic OA and therefore her claim for compensation was acceptable.

On June 27, 2013, the WCB advised the worker that no change could be made to the decision of April 24, 2012. The adjudicator acknowledged that setting up machines in her work area was higher than in another area, however, there was no evidence to support a relationship between the diagnosis of right thumb OA and the worker's job duties. The adjudicator stated:

• there was no evidence to support that the worker's job duties aggravated or enhanced the pre-existing OA
• regarding pinch pressure, the information submitted and the job duties as described did not demonstrate force, frequency and repetition required to be a risk factor for the development of OA or to aggravate/enhance her existing OA
• regarding the argument that clamping was a hazardous component of the worker's job duties, the adjudicator commented that each claim received by the WCB was adjudicated on individual merits and any acceptance of a claim must still meet the requirements of an injury which arose out of and in the course of the worker's job duties
• with respect to the worker advisor's contention that the worker did not seek medical treatment for her thumb prior to March 19, 2013 except for experiencing some minor thumb soreness, the adjudicator noted that the worker had been diagnosed with OA and the natural history for degenerative OA was a progression of symptoms over time and could not be attributed specifically to her work duties

On August 19, 2013, the Worker Advisor Office appealed the adjudicator's decision to Review Office. On October 7, 2013, the employer's advocate submitted that there was no objective medical evidence of an acute injury resulting in disability.

On October 25, 2013, Review Office confirmed that the worker's claim for compensation was not acceptable. Review Office noted that OA of the right thumb was a non-compensable pre-existing condition. It noted that the worker's job duties would be difficult to perform given the degenerative condition of her right thumb and hand but that the evidence fell short to support that a material aggravation of the worker's pre-existing condition occurred or was sufficient to meet the definition of a compensable accident. On November 21, 2013, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

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

This appeal deals with claims acceptance. The key issue to be determined by the panel deals with causation and whether the worker’s right thumb injury arose out of and in the course of her employment. In this case the worker has a pre-existing condition affecting her right thumb.

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.

The WCB Board of Directors established WCB Policy 44.10.20.10, Pre-Existing Conditions (the Policy) which deals with claims involving pre-existing conditions.

Worker's Position

The worker was represented by a worker advisor who made a submission on behalf of the worker. The worker answered questions from her representative and the panel.

In answer to questions, the worker advised that:

• she had worked for the employer for approximately 33 years
• she worked in her current position for approximately 9 years
• she attributes her injury to the use of a clamp which requires significant pressure to open
• she began working with the clamp in August 2011 when her workplace switched to a different machine
• there are 23 machines in her unit and two staff who must set up the machines, including the opening of the clamps, within a one hour period, two times each day. As well, the staff must disconnect the machines once each day
• the work is fast paced
• she missed two weeks of work because of increased symptoms and then participated in a graduated return to work
• when she returned to work she used forceps to open the clamp as recommended by the employer's occupational therapist
• since her return to work she has not had any symptoms or problems with her thumb
• she had no prior problem with her thumb and did not know she had arthritis until the workplace injury

The worker's representative noted that the employer conducted an Ergonomic Assessment in another unit which used the same clamp on the same machines as those worked on by the worker. The assessment was performed as a result of an increase in staff injuries in that unit. The assessment found that the use of the clamp was not considered repetitive over the shift, but found that the force required to close the large clamps was 7.6 to 17.9 lbs which exceed the human strength limitations for pinching motions of females ( 15 lbs.). The representative noted that the Ergonomic Assessment made recommendations regarding the use of the clamp, including using pliers to increase leverage and to contact the manufacturer of the machines regarding the redesign of the clamp.

The worker advised that her thumb became red and swollen and that she showed her thumb to her co-workers. Regarding treatment of her injury, the worker advised that she was unable to see her physician immediately after the injury but immediately attended at a pharmacy where the pharmacist recommended the use of a cream to reduce the symptoms. She advised that she used the cream which provided some relief and reduced the redness and swelling. She saw her physician who also prescribed the cream.

The worker's representative suggested that the worker's physician did not observe the swelling and redness when she saw the worker because the cream had been effective in reducing these symptoms.

The worker's representative acknowledged that the worker's duties did not cause her OA, but submitted that her duties, specifically placing the clamp on bloodlines, resulted in an aggravation of her OA, which had previously been asymptomatic. He noted that the use of the clamp resulted in a temporary clinical effect on the worker's pre-existing condition.

Employer's Position

The employer was represented by an advocate. She advised that the employer agrees with the Review Office decision. She answered questions from the panel.

She submitted that:

• nothing unusual transpired at work
• the worker told the WCB that she could not explain the cause of the injury
• the medical reports do not identify objective findings and do not note swelling or redness
• an x-ray indicated that the worker has OA and that it is most pronounced in the right thumb area
• the diagnosed condition is bilateral which supports that it is non-occupational; as well, it is a common disease of aging
• the Ergonomic Assessment found the work was not repetitive or forceful
• the evidence shows that no other workplaces have problems with the clamp

In answer to a question, the employer's representative submitted that there has been no change in duties, only in the machine that the staff work with. She also noted that the file information states that nurses are more affected than unit clerks.

Analysis

The issue before the panel is whether the worker’s claim arose out of and in the course of her employment. In order for the appeal to be successful, the panel must be satisfied, on a balance of probabilities, that the worker's right thumb injury 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 find that there is a causal connection between the right thumb condition and the worker’s employment. We find, on a balance of probabilities, that the worker's duties involving the use of clamps on bloodlines caused an aggravation of her pre-existing OA of her right thumb. Accordingly, the worker's claim is acceptable.

In arriving at this decision, we rely on the following facts:

• the Ergonomic Assessment conducted by the employer's occupational therapist which identified a significant ergonomic problem arising from the use of specific clamps that was affecting many staff who were performing similar duties, and recommended a change in the use of the clamps
• the worker's use of the clamps and use of her thumb were greater than those of the staff in the unit in which the Ergonomic Assessment took place
• the worker had a pre-existing OA condition affecting her right thumb which would have predisposed her to further injury, even more than the regular staff who were affected by the clamping duties
• the worker performed her duties as a unit clerk for many years before the change in machines and had no symptoms related to her thumb
• there was a change in the worker's duties commencing in August 2011 when new machines were put in place which required the use of the noted clamps

The panel notes the worker's evidence that since her return to work with the adjusted clamping protocols, she has had no problems with her thumb. The panel finds that this evidence supports its finding that the worker suffered an aggravation of her pre-existing condition which resolved after the duties were modified. This is consistent with the definition of aggravation set out in the Policy, being "The temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable accident."

Regarding the employer's concern that the physician did not identify swelling or redness, the panel accepts the worker's evidence that the cream recommended by the pharmacist and later prescribed by the physician was effective in relieving the visible symptoms when the worker attended at the physician's office. The panel notes that the worker's co-workers confirmed the existence of the swelling and redness when the worker was at work. The panel also notes that the worker's complaints to her physician were consistent each time she saw the physician.

The worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 6th day of May, 2014