The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") that the worker sustained personal injury by accident arising out of and in the course of her employment and that her claim for compensation was acceptable. A hearing was held on March 13, 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 injury to her left hand, wrist and fingers which she related to counting coins for two weeks as a finance clerk. The date of injury was February 8, 2013.

The employer's accident report dated February 19, 2013 indicated that the worker was injured while lifting a heavy bag of coins out of a stand-up safe.

On February 20, 2013, the worker advised the WCB that she was relating the onset of her symptoms to the job duties she performed on February 8, 2013. The worker indicated that she had lifted approximately 6 bags of coins that had accumulated over two weeks. She lifted the bags from the safe to the counter and then from the counter to the machine. The bags were heavy and she was lifting them with both hands. She held the bag with her right hand and placed her left hand underneath the bag. This was part of her regular duties. The worker indicated that they usually received coins in two bags but she was on holidays and upon return, they placed all the coins into one bag, so the bags were heavier than usual. The worker said she reported the accident to a co-worker and then to her supervisor.

On February 22, 2013, the co-worker identified by the worker was contacted by the WCB. The co-worker stated that she did not witness an accident on February 8, 2013. She said the worker complained daily that she had pain in her hand/wrist from counting coins.

The WCB adjudicator then spoke with the worker's supervisor on February 22, 2013. The supervisor reported that the worker e-mailed her on February 19 stating that she suffered an accident on February 8, 2013. She was not aware that the worker had any problems with her left wrist until the worker reported an accident.

Medical information showed that the worker sought treatment on February 21, 2013 and was diagnosed with a left wrist strain. The worker was also diagnosed with left finger flexion tendon strain by her treating physiotherapist.

On February 27, 2013, a WCB medical advisor reviewed the file and stated that the diagnosis appeared to be a strain of the left volar wrist. He noted that repetitive resisted wrist/finger extension was typically implicated with the diagnosis. In a further note to file dated March 4, 2013, the WCB medical advisor stated: "…it is predicted that movements associated with tendinosis of the hand or wrist would need to be forceful and performed repetitively over 1 or more days to be typically associated with the development of symptoms."

On March 5, 2013, the WCB denied responsibility for the worker's claim. Based on the accident history, the frequency that the worker performed her duties and the current clinical findings, the WCB was unable to establish a relationship between the development of her symptoms and an accident occurring at work. On April 2, 2013, the worker appealed the decision to Review Office through her union representative.

On May 27, 2013, Review Office determined that the worker sustained personal injury by accident arising out of and in the course of her employment and that her claim for compensation was acceptable. Review Office found that a relationship did exist between the onset of the worker's symptoms on February 8, 2013 and her job duties. In particular, Review Office noted that the worker's duties involved an increase in the weight and number of bags handled which resulted in the worker sustaining a left volar wrist strain. On June 26, 2013, the employer's representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

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.

The employer’s position:

An advocate and two representatives from the employer appeared at the hearing. The employer indicated that while it was not unsympathetic to the worker's condition, it was felt that the evidence did not support that the worker suffered a disabling left wrist strain or a tendonitis condition arising from her work duties on February 8, 2013. The work did not entail forceful, repetitive or heavy lifting that would be expected to result in the diagnosis provided by the physiotherapist and doctor of what was variously described as a flexor tendon strain, tendonitis or a volar wrist strain. This type of strain or tendonitis is caused by forceful repetitious activity, such as those involved in sports, or could be associated with arthritis. There was also a delay in reporting and a delay in seeking medical attention which caused the employer to question whether the injury was related to the work performed on February 8, 2013.

It was submitted that the employer placed a great emphasis on safety, injury prevention and prompt reporting of claims, of which the worker would have been aware. In 2009, a complete ergonomic assessment was made of the work area. The job duty to which the worker attributed her injury was normally done once per week. While it was admitted that there may have been extra bags due to a backlog from holidays, the bags were not very heavy and were not lifted or handled in a repetitive manner. They were not carried for any significant distance. The motion used to empty the bag of coins into the machine took about two minutes and would not lead to a repetitive strain or tendonitis injury of the left hand. The worker completed the entire task with the assistance of a co-worker in about one hour. Overall, the work was not repetitious by accepted standards, was not forceful and did not involve awkward sustained conditions. The worker had done this work for years. There was nothing unusual on that day. The panel was therefore asked to reverse the WCB decision to accept the claim.

The worker’s position:

The worker was assisted by a union representative at the hearing. The worker's position was that the WCB correctly decided to accept the worker's claim for a strain to the left volar wrist. The evidence supported this conclusion in that the worker reported wrist difficulties after counting two weeks of coins, the employer's report attributed her symptoms to lifting bags of coins, the worker gave a consistent report to her adjudicator and a co-worker confirmed the increase in the number and weight of the bags and recalled the worker's complaints. Finally, the medical reports from both the family physician and the WCB medical advisor provided a diagnosis of wrist strain. It was therefore submitted that the evidence supported that the worker did suffer personal injury by accident arising out of and in the course of her employment.

Analysis:

The issue before the panel is claim acceptability. In order for the employer's appeal to be successful, the panel must find that the worker did not suffer an injury during the course of her employment on February 8, 2013. On a balance of probabilities, we are not able to make that finding.

The panel gave careful consideration to the mechanism of injury. We acknowledge the employer's submission that this was not forceful, repetitive or heavy lifting. The WCB medical advisor's opinion of March 4, 2013 indicated that: "Movements associated with tendinosis of the hand or wrist would need to be forceful and performed repetitively over 1 or more days to be typically associated with the development of symptoms." Similarly, on July 4, 2013, the WCB physiotherapy consultant indicated that: "Tendinitis/tendinopathy/tenosynovitis is due to repetitive overload of the specific tendon." However, the physio consultant then went on to indicate: "A wrist/finger flexor strain is due to repetitive gripping and lifting repetitively or one time force overload" (emphasis added).

At the hearing, the evidence was that the worker had voiced concerns in the past regarding the weight of the bags and her ability to lift them, given her slight stature. As a result of these concerns, the practice in the workplace had changed in 2011 so that the full bags of coins were to be divided by the persons who collected the coins into two bags before being placed in the safe. The evidence was unclear as to whether or not the bags had been divided on this occasion but the panel accepts that on February 8, 2013, the worker lifted between 6 to 8 bags weighing at least 5 pounds each. We accept the worker's evidence that although she worked with a co-worker, she did the majority of the lifting as her co-worker had previously had restrictions regarding lifting and therefore the worker usually assumed responsibility for this part of the task.

With respect to the concerns regarding delay, the panel accepts the worker's evidence that February 19, 2013 was the earliest appointment she could get with the physiotherapist. She had previously attended this physiotherapist for an unrelated injury. While the worker's explanation for not reporting the incident to her employer earlier was lacking, the panel does not find that this is fatal to her claim for benefits. The worker was sufficiently credible with respect to the other aspects of her claim.

Overall, on a balance of probabilities, the panel accepts that even though the work did not involve forceful repetitive lifting, there was an increase in the weight and number of bags sufficient to create a one-time overload which resulted in the worker sustaining a left volar wrist strain. We therefore find that the claim is acceptable.

The employer's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Lafond, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 7th day of May, 2014