The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A hearing was held on July 7, 2015 to consider the worker'sappeal.  

Issue

Date of Accident - November 5, 2013

Whether or not the worker's current left wrist symptoms are related to the November 5, 2013 compensable accident; and

Date of Accident - July 12, 2014

Whether or not the claim is acceptable.

Decision

Date of Accident - November 5, 2013

That the worker's current left wrist symptoms are related to the November 5, 2013 compensable accident; and

Date of Accident - July 12, 2014

That the claim is not acceptable.

Decision: Unanimous

Background

Date of Accident - November 5, 2013

On November 28, 2013, the worker filed a claim with the WCB for an injury to her left wrist that occurred at work on November 5, 2013. The worker stated she was lifting freight and felt a sharp pain and a pop in her wrist. She said her hand started to get weak and it hurt. On November 8, she saw a bump on her wrist. The worker said she wrapped her wrist and continued working. She later made a doctor's appointment, as she couldn't stand the pain.

The Employer's Accident Report stated that the worker reported that she was lifting heavy boxes of produce and she heard a sharp pain/pop in her wrist. The doctor said that she had muscle separation in her wrist. The employer stated that the worker reported the November 5, 2013 accident on November 26, 2013.

On December 12, 2013, the worker advised the WCB that her wrist was slightly sore prior to the November injury due to the work she did. She noted that on November 5, her wrist really started to hurt. In the course of her work, she lifts 50-60 pounds, putting produce into and taking it out of a cooler as necessary. At the time of injury, she was lifting crates of produce of least 50 pounds without help. As she lifted, she felt a pop and pain in her left wrist. The worker stated she was right hand dominant and co-workers were aware that she was injured.

The Doctor First Report set out that the worker sought treatment on November 26, 2013. The treating physician reported: "Pain over ulnar styloid, also that it is more prominent" and diagnosed a left wrist sprain. The physician indicated that the worker was capable of modified duties with decreased use of her left wrist.

In a doctor progress report of December 5, 2013, the worker’s physician noted that the pain and swelling had improved but she still had some soreness when working. The physician recommended that the worker gradually return to regular duties and that the return to work may be helped by use of a wrist support.

On January 2, 2014, a WCB case manager noted to the file that the worker had essentially resumed her regular duties, had no further follow-up and was not attending any active treatment.

On September 24, 2014, the worker advised the WCB that she was having ongoing difficulties with her left wrist which she related to her November 5, 2013 compensable injury.

Additional medical information on the worker's claim file showed that she underwent x-rays of her left wrist on March 5, 2014. The radiological report stated: “No fracture or dislocation is identified. There is however suspicion for mild osteoarthritic change at the first carpometacarpal joint and also between the scaphoid and trapezium.”

A specialist's report of August 14, 2014 sets out that the worker presented with a history of ulnar aspect wrist pain and swelling after lifting a heavy box at work in November 2013. The diagnoses were

• Possible TFCC [triangular fibrocartilage complex] ligament injury at the left wrist.
• Mild ulnar neuropathy at each elbow, worse on the left
• No evidence for an ulnar neuropathy at either wrist.
• No evidence for a median neuropathy at either wrist.

On October 27, 2014, an MRI of the left wrist showed findings in keeping with the clinical impression of TFCC tear.

On October 29, 2014, a WCB sports medicine advisor reviewed the file information and provided an opinion that “The initial diagnosis was a probable left wrist strain occurring on a background of previously reported wrist pain. The strain demonstrated functional improvement by December 2013 allowing for the resumption of usual activities as per a January 2/14 memo on file.” The WCB medical advisor noted that the MRI results demonstrated a left TFCC tear and stated that “TFCC tears are typically the result of forceful torque/twisting of the wrist, or falling on the outstretched hand. In the absence of such a mechanism, TFCC tears are usually degenerative in nature. Although there were ulnar symptoms initially, the mechanism of injury as well as the material improvement of clinical findings after a few weeks supports a strain type injury rather than an acute TFCC tear.”

In a letter dated November 14, 2014, the WCB advised the worker that the WCB was unable to accept further responsibility for her left wrist difficulties. On February 6, 2015, a worker advisor appealed the decision to Review Office.

On March 11, 2015, Review Office accepted the WCB medical opinion outlined on October 29, 2014 and found that the worker's current left wrist symptoms were not related to the compensable injury.

On April 14, 2015, the worker advisor appealed the decision to the Appeal Commission.

Date of Accident - July 12, 2014

The worker filed a claim with the WCB on July 23, 2014 regarding injury to both wrists. The worker noted that she had prior issues with her left wrist and was overcompensating with her right wrist. She first noticed pain a couple of weeks after Christmas. The worker said she felt slight pain in both wrists and then she started to drop things. She was now experiencing shooting pains near the elbow crease.

In her claim, the worker described her job duties as “Lifting anything from 5-60 lbs. I lift all of the produce all day long. Wrapping produce to put out in the store. I do this 8 hours every day for 5 days a week. I order the produce over the phone so there is no computer work. I am right handed.”

A doctor first report dated July 14, 2014 noted that the worker had sharp pain and numbness with tingling and sometimes weakness to the point of dropping things. The diagnosis was to rule out carpal tunnel syndrome ("CTS").

On July 29, 2014, the worker provided the WCB with further details regarding the onset of her wrist difficulties, the medical treatment she received, the reporting of the accident to her supervisor and co-workers and a description of her job duties as a produce manager.

As noted above, a specialist's report dated August 14, 2014 sets out that the worker presented with a history of ulnar wrist pain and swelling after lifting a heavy box at work in November 2013. The report concludes that the worker has mild ulnar neuropathy at each elbow, worse on the left, and that there is no evidence for either an ulnar neuropathy or median neuropathy at either wrist.

On August 18, 2014, the worker saw a second physician for treatment with complaints of pain in both hands. The physician's diagnosis was ulnar nerve neuropathy.

A WCB medical advisor reviewed the file on September 24, 2014. With respect to the diagnosis of ulnar neuropathy, she commented that:

Ulnar neuropathy is usually idiopathic (i.e. no known cause). Risk factors include age, female, and smoking. There is evidence that a combination of force and repetition may be causative. Here, this would involve repetitive bending and straightening of the elbow against force. It can also be caused by a direct blow to the ulnar nerve at the elbow or prolonged pressure (as in leaning on) over the elbow.

Repetitive for upper extremity activities is doing the same activity several times per minute over the majority of the work day. Forceful for elbow movements would be around 20-25 lbs.

This worker does not do any activity at work that would involve repetitive bending/straightening of the elbow multiple times per minute against a 20-25 lb force. She does do some lifting, but that does not involve the repetitive elbow bending or straightening.

Based on this review, there is no evidence that the current presentation or [diagnosis] can be medically accounted for in relation to the C/I.

On September 30, 2014, the WCB advised the worker the WCB was unable to accept responsibility for her claim.

On February 16, 2015, a worker advisor appealed the decision to Review Office. In a decision dated March 11, 2015, Review Office determined that the worker's claim was not acceptable as it was unable to find that the job duties included activities that were considered repetitive or forceful enough to be the cause of her injury.

On April 14, 2015, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

In considering this appeal, the panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 1(1) of the Act defines accident as a chance event occasioned by a physical or natural cause; and includes:

(a) a wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

and as a result of which a worker is injured;

Worker’s Position

The worker, represented by a worker advisor, took the position with respect to the accident of November 5, 2013, that there is an ongoing relationship between her ongoing left wrist difficulties and the mechanism of injury.

Specifically, the worker advisor noted that the initial symptoms following the injury of November 5, 2013 progressed in the month that followed, consistent with the evidence contained in the December 4, 2013 doctor’s report which noted that the worker’s left wrist continued to be sore with lifting and that the ulnar styloid was still present. Despite receiving no further medical or other treatment, the worker returned to regular duties on January 2, 2014. The worker’s evidence is that her left wrist continued to be sore at that time and she coped by wrapping it and by self-modification of how she lifted and completed other work-related tasks.

The worker’s position is that her ongoing left wrist symptoms are directly related to the November 5, 2013 workplace accident.

With respect to the second issue, whether or not the claim related to the injury of July 12, 2014 is acceptable, the worker, through the worker advisor, advanced the position that the bilateral injury to the worker’s elbows is attributable to the repetitive loading and unloading, reaching and bending required as part of the worker’s job duties. The worker’s diagnosis of bilateral ulnar neuropathy, the worker advisor argued, is the result of the activity of unloading and loading heavy boxes of produce.

Employer's Position

The employer did not participate in the appeal.

Analysis and Decision

The issues for determination with respect to the two claims by the worker, although heard together, are addressed separately below.

Date of Accident - November 5, 2013

In order to find that the worker’s current left wrist symptoms are related to the November 5, 2013 compensable accident, the panel must find on a balance of probabilities that the worker’s current diagnosis of a TFCC tear in her left wrist is related to the accepted compensable injury. The panel was able to make this finding.

The clinical findings here at first suggested that the worker suffered a strain type injury to her left wrist. The worker’s description of the mechanism of injury was that while lifting a 50-60 lb. box of cabbage from a pallet onto a portable cart, using both arms outstretched, the worker heard a snap or a pop coming from her left wrist and immediately felt pain in that wrist, focused more along the side. She continued working and later that day, wrapped the injured wrist with medical tape.

The worker did not see a physician until approximately two weeks later. In the interim, she reported experiencing numbing in the hand as well as swelling and pain. The medical report from that first visit indicates pain over the left ulnar styloid with flexion and extension. The styloid was also noted as being prominent. The worker was advised to treat with strapping and analgesia and to perform alternate or modified work.

The worker continued to work at light duties, which she described as checkout, packing and carrying out groceries. She saw her physician again on December 4, 2013 at which time the doctor’s report noted soreness with working, improvement in pain and swelling and a slight prominence of the ulnar styloid. She was told to gradually return to regular duties, using a wrist support.

The worker returned to regular duties in early January 2014. She noted that this included a return to unloading produce as it was delivered. She continued to wrap her wrist and described symptoms including pain all around the wrist, numbing and occasional sharp pain in her elbows.

The first diagnostic test took place in March 2014. No fracture or dislocation was identified however there was some suspicion for mild osteoarthritic change identified at that time.

With worsening pain in her wrist, the worker again sought medical attention in July 2014. At that time, she was referred to a specialist who identified a possible TFCC tear in her left wrist, stating “The swelling and pain on the ulnar aspect of her wrist may suggest a ligament or bony injury due to her described mechanism of injury.” The specialist referred the worker for an MRI which took place in October 2014.

The October 27, 2014 MRI report indicates findings in keeping with the clinical impression of a TFCC tear.

While the WCB Medical Advisor who reviewed the clinical findings on October 29, 2014 formed the opinion that “…the mechanism of injury as well as the material improvement of clinical findings after a few weeks supports a strain type injury rather than an acute TFCC tear,” the evidence before the panel does not support this view.

The evidence before the panel suggests, rather, that there was not a material improvement of clinical findings in the weeks following the initial injury to the worker’s left wrist. The worker, in the absence of any treatment, self-modified her duties on an ongoing basis and continued to wrap her wrist all the time she was working. There is little evidence of any improvement or recovery from the injury of November 5, 2013.

Further, the evidence before the panel suggests a mechanism of injury that is consistent with a TFCC tear. Specifically, the panel notes the worker’s evidence that a pop was heard at the time of injury. The worker experienced pain and swelling in the styloid area of her wrist and this was ongoing. The forceful movement of lifting a 50-60 lb. box of produce could account for the acute injury to the worker’s wrist.

As well, the evidence considered by the panel suggests a continuity of symptoms arising from a TFCC tear, supported by ongoing wrapping of the worker’s wrist as she performed self-modified regular duties from the time of the reported injury in November 2013 to the later identification of the TFCC tear through the MRI results in October 2014.

The panel therefore finds, on a balance of probabilities, that the worker's current left wrist symptoms are related to the November 5, 2013 compensable injury.

Date of Accident - July 12, 2014

In order to find that the worker’s second claim, with respect to onset of bilateral elbow pain, is acceptable, the panel must find that the injury occurred by accident, as defined by the Act, arising out of and in the course of the worker’s employment. The panel was unable to make this finding.

The worker attributes the injury to both elbows to her job duties including heavy lifting in loading and unloading semiweekly freight deliveries and to the repetitive tasks of wrapping produce, stocking coolers and baskets and in working at the checkout.

The initial clinical findings suggested median neuropathy, with decreased sensation evident at the median nerve territory. The worker was referred to a specialist for nerve conduction studies. These indicated mild ulnar neuropathy at each elbow, worse on the left. The specialist suggested that the “mild conduction velocity slowing across the ulnar nerves at each elbow….may be incidental as repetitive straightening and bending of the arm can contribute toward ulnar neuropathies.”

The WCB medical advisor reviewed the August 2014 nerve conduction study findings and noted in a September 24, 2014 report that ulnar neuropathy is usually idiopathic. A combination of force and repetition may be causative, where repetitive is defined as bending and straightening of the elbow against force (20-25 lb) several times per minute over majority of the day. The medical advisor concluded, having regard to the worker’s specific job duties, that:

“This worker does not do any activity at work that would involve repetitive bending/straightening of the elbow multiple times per minute against at 20-25 lb force. She does do some lifting but that does not involve the repetitive elbow bending or straightening. Based on this review, there is no evidence that the current presentation or dx can be medically accounted for in relation to the C.I.”

The panel heard and considered evidence of the variable nature of the worker’s job duties. The worker described working at varying heights, moving objects of a wide range of sizes and weights and doing a wide range of tasks, from wrapping to stacking to unpacking and more. Her duties, as described, are self-paced and self-modified.

The panel also considered the specific arm motions the worker identified, which mostly involve extension of her arms rather than repetitive elbow bending and straightening.

The evidence before the panel does not suggest a work-related cause for the diagnosis of bilateral ulnar neuropathy at the elbows. The fact that the worker experiences symptoms related to bilateral ulnar neuropathy at the elbows while she is at work does not mean that those symptoms are caused by her job duties.

In this regard, the panel is convinced by the September 24, 2014 opinion of the WCB medical advisor that the worker’s diagnosis is indicative of an idiopathic onset and not related to the worker’s employment.

We are unable to find on a balance of probabilities that the worker’s July 12, 2014 claim arose from a personal injury by an accident "arising out of and in the course of her employment."