The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that her wrist and elbow condition was not related to an accident arising outof and in the course of her employment.  Ahearing was held on January 22, 2015 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable with respect to the right wristcomplaints.

Decision: Unanimous

Background

The worker filed a claim with the WCB on November 12, 2013 for a right wrist strain that developed on October 17, 2013 which she attributed to the use of a heavy mop during her employment as a custodian aide. The worker indicated that she used a mop that was very heavy and she felt a strain in her right wrist. As time went on, the pain worsened and it radiated into her elbow. The worker reported the injury to her employer on November 5, 2013 as she did not feel her injury was serious. The worker noted that she had concurrent employment and was missing time from that job as well.

The Employer's Incident Report stated that the worker presented a doctor's note on November 12, 2013 indicating that she needed to rest for one week and that she had tendonitis. On the worker's incident report, the worker stated that she was sore after her first shift on October 17, 2013. She did not tell her supervisor that the mop was too heavy. In a letter attached with the Employer's Incident Report it was stated:

During the week of November 4 to 8 she told a co-worker that she was a little sore. On November 8 she asked the supervisor...if he heard of a women's mop. Meaning something smaller. [The supervisor] said he would look into getting a smaller mop heads for [the worker]. [The worker] has a day job cleaning as well. During the investigation it was uncovered that [the worker] does not take her break stating she has no time. Our organization does not approve of this practice - it is mandatory during an 8 hour shift to have 2-15 min. breaks plus a half hour lunch. [The worker] has also been trained in our workplace policy and procedures. This includes MSI and best work practices for Custodial Staff Re: cleaning. [The worker] started her employment on Oct. 17.

Medical information showed that the worker attended a physiotherapist on November 13, 2013 with complaints of a constant throbbing pain, sharp pain with movement, painful with grabbing and her sleep was disturbed. The worker's description of injury was "increasing pain after mopping floors." The diagnosis was wrist flexor and extensor strain 2nd degree and tendonitis in wrist flexors and extensors.

On November 15, 2013, the worker advised a WCB adjudicator that she started work on October 17 as a custodial aide and that she mopped for about 3 hours. Towards the end of the day, she wet mopped for an hour and by the end she started to feel pain and soreness in her wrist. She mentioned to a co-worker that her mop was heavy and she made ongoing complaints about her wrist difficulties. Her typical day included cleaning bathrooms, desks, tables and garbage removal. She was right-handed and her hand was at the top of the mop when she used it. Things progressively became worse over time. At her second job, the worker indicated that she worked as a cleaner from 7 to 1:45 p.m. She dusted, cleaned bathrooms and mopped intermittent for about 3 hours throughout the day. She used a smaller mop that was lighter and easier to manage as compared to the mop that she used at the accident employer. Her last day of work was on November 12.

The WCB adjudicator then spoke with the co-worker identified by the worker. The co-worker recalled that within the first couple of days after starting work on October 17, the worker mentioned that the mops were pretty heavy. She was not aware of any ongoing complaints until the past week when the worker mentioned that her wrist was hurting before she went off work. There was not a lot of dialogue between her and the worker as they both cleaned different parts of the building.

On November 20, 2013, a supervisor described the worker's job duties as follows:

• A normal work shift is eight hours and you are expected to mop an hour maximum.
• There was no reason to mop for three hours.
• The worker was responsible for cleaning 15 rooms and was to spend 15 minutes in each room.
• There was light sweeping, vacuuming, cleaning the whiteboard, some tables and desks in each room.
• There was cleaning in a bathroom with three urinals, a toilet and two single bathrooms.

The supervisor indicated that he did not hear anything about an injury. All he knew was that the worker asked for a woman's mop on November 8 and he was looking to find her a smaller mop.

The WCB adjudicator spoke with the manager at the worker's concurrent employment. The manager indicated that the worker mopped between two to three hours intermittently throughout the day. The worker was a casual staff member and she would either work a laundry shift or a housekeeping shift. The laundry shift was a 6.5 position and housekeeping was a 7.75 position. The mop used by the worker was a standard mop and she was not sure if it was bigger or smaller than other mops.

On November 26, 2013, the worker was advised that her claim was not acceptable as the WCB was unable to establish an accident "arising out of and in the course of" employment. The decision was based on the worker's delay in seeking medical treatment until November 12, 2013, the worker's delay in reporting a workplace accident to the employer and the WCB being unable to confirm ongoing difficulties.

On January 7, 2014, the Worker Advisor Office requested that Review Office reconsider the adjudicator's decision to deny the worker's claim. The worker advisor referred to file evidence to support the following positions:

• That the worker's right-sided injuries arose as a result of her new employment duties.
• There was no delay in reporting.
• The worker's claim met the criteria of an "accident" as set out under subsection 1(1)(b)(ii) of the Act.
• A specific injury occurred at the time of the reported accident.

On March 7, 2014, Review Office upheld the earlier decision that the worker's claim was not acceptable. Review Office referred to medical information and file evidence to support that the worker's report of disability and pain in her right wrist and elbow was disproportionate to the described mechanism of injury of mopping for three hours with a mop that was reported to be heavier than the one she was accustomed to. Review Office indicated that right elbow epicondylitis was a condition that was known to arise idiopathically (no known cause) and affected the greatest number of people in the worker's age cohort and gender. Review Office felt that there was no causal connection between the reported mechanism of injury and the worker's reported disability. On July 2, 2014, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel requested additional medical information which was forwarded to the interested parties for comment. On March 24, 2015, the panel met further to discuss the case and render a decision.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by 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. (emphasis added)

The key issue to be determined by the panel deals with causation and whether the worker’s right elbow and wrist condition arose out of and in the course of her employment.

The worker’s position:

The worker was assisted by a worker advisor at the hearing. The worker's position was that the medical information on file supported that the worker suffered a wrist strain injury as well as elbow difficulties which were connected to her employment duties. The worker performed her mopping duties without taking breaks and the mopping actions caused a right wrist tendon strain at the wrist joint and elbow injury of lateral epicondylitis. Although the worker performed mopping duties at her concurrent employment, she mopped intermittently and she used a small mop compared to the one provided by the accident employer. It was submitted that as a result of mopping with a heavy mop without taking breaks, the worker placed additional stress on the dominant wrist and elbow. This caused pain and eventual strain to the wrist to the point that the worker needed to confide in a co-worker, seek medical attention, and report the injury to her employer and the WCB.

The employer’s position:

The employer was represented by a human resource coordinator and a maintenance supervisor at the hearing. The employer's position was that it agreed with the adjudication made by the WCB and supported the decision that the claim was not acceptable. It was noted that on her first day the worker had received training about safety techniques and the importance of taking breaks. She was given her position duties and a description of what would be expected of her. When it did come to the employer's attention that the worker was having pain, it was significantly later than the first day that the incident occurred and the information came as a surprise to the employer. The severity of the injury was not initially appreciated, and once the supervisor became aware of the need for a smaller mop, immediate steps were taken to ensure one was available for the worker upon her return. Ultimately, the worker did not return for another shift. It was also noted that with the employer's other employees, there was no record of any concerns or complaints regarding the need for a smaller mop.

Overall, medical accommodation was something taken seriously by the employer but they were not aware of the worker's problems until after a medical note was provided, and by that point in time, the worker never returned to work.

Analysis:

The issue before the panel is claim acceptability and whether or not the worker’s right wrist and elbow injuries 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 performance of her job duties. On a balance of probabilities, we are able to make that finding with respect to the worker's wrist.

At the hearing, the worker described two areas where she was experiencing pain. The first area which caused her difficulty was her right wrist. Starting on the first day, the worker experienced pain and soreness in her right wrist. She attributed these difficulties to the mopping duties being performed by her, and in particular, the use of the larger sized mop.

The worker also described having difficulty with her elbow but was less specific as to the onset of difficulties in this area. The worker indicated that on the first day, she had pain in her wrist joint which radiated down to her ring and pinky fingers and which then started going up into her elbow. In her submission, the worker advisor characterized the worker's injury as a: "wrist strain tendon injury as well as elbow difficulties." A diagnosis of "lateral epicondylitis" was later referenced.

Following the hearing, the panel requested additional medical information from a sports medicine physician who saw the worker in December 2013. The diagnoses identified by the sports medicine specialist were repetitive strain injury right arm and distal radio-ulna joint ("DRUJ") vs triangular fibrocartilage complex ("TFCC") pathology right wrist. A subsequent MRI performed March 22, 2014 identified minimal degenerative spurring of the DRUJ.

The panel is of the view that the degenerative spurring of the DRUJ was a pre-existing condition which was present in the worker's right wrist. This pre-existing condition would render the worker's wrist more susceptible to injury. We accept on a balance of probabilities that the worker's new job duties of mopping with a heavier mop and extra cleaning on account of construction caused a temporary aggravation of the worker's pre-existing DRUJ condition. In particular, the panel notes that the mopping described by the worker involved repeated flexion and extension of the worker's wrists. While we do not feel that the job duties would have caused an enhancement by worsening the worker's degenerative spurring, we do accept that an aggravation of her wrist condition occurred. We therefore find that the worker has a claim with respect to these complaints.

With respect to the right elbow condition, the panel does not accept that the job duties were sufficient to cause the worker to develop lateral epicondylitis. The type of activities which are typically associated with the development of lateral epicondylitis are repetitive, vigorous movements of the forearm and elbow against force, requiring a strong grip or use of vibratory tools. While the mopping performed by the worker required repetitive movement of the wrists, the panel is not satisfied that there was also a degree of forearm and elbow involvement which would be causative of lateral epicondylitis. The panel also notes that while the amount of mopping being performed by the worker was sufficient to cause aggravation of her pre-existing degenerative wrist condition, we do not accept that it was enough to cause damage to the lateral epicondyle. The worker described mopping for three hours. The employer indicated that the mopping expected of the worker was not heavy-duty mopping, but rather was light mopping for approximately 15 minutes at a time. The panel finds that the mopping was relatively light, albeit with a mop which was heavy for the worker. We accept that the worker may have performed these duties for up to three hours, but they were intermittent and not sustained for extended periods of time. As such, we find they were not causative of a right lateral epicondylitis.

For the foregoing reasons, the panel finds on a balance of probabilities that the worker has an acceptable claim with respect to her right wrist complaints. The worker's appeal is allowed as outlined.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 2nd day of April, 2015