The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim for compensation was not acceptable. A hearing was held on February 4, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On December 18, 2013, the worker filed a claim with the WCB for injury to both elbows that she related to her job duties as a Pharmacy Technician. The worker described her job duties as follows:

I work in sterile hoods (my arms are inside the hood and I have to inject medications into bags). Putting tubes in bags and injecting drugs into chemo bags with a syringe. My arms are always extended out inside the hoods. I can either sit or stand while I do this. When I am doing nutrition bags I hang the bags on hooks above my shoulders. I can do that 6 - 8 hrs a day. When I do the chemo bags if it is busy it can be an all day thing. The tubes are pushed into bags and sometimes the port can be so tight it takes a fair amount of effort.

The worker reported that she first noticed symptoms in November 2013. In September 2013, she spoke with her manager because she was in the hood 7 days in a row. Her shoulders and neck were sore and her mobility decreased. By November, the pain was radiating down her arms and she started to get headaches. She stopped working in the hood on November 27 and had been off work since then.

On December 19, 2013, the worker spoke with a WCB adjudicator, stating that her neck and shoulder difficulties started about 5 years previously while working in the hood and hanging bags, etc. She also experienced tennis elbow in both arms and pain in her wrists. The worker said they had been working more and more in the hood. They had a machine that was running the TPN bags and they were having problems with the tubing which included more twisting, etc. They were working 7 days in the hood 90% of the time, which was more than she was used to. They used to have a rotating schedule "but after the machine switch and bag change made it harder to twist the tubing more."

The WCB adjudicator spoke with the worker's supervisor in late January 2014 who verified the job duties as described by the worker.

On January 31, 2014, the worker was advised of the WCB's decision that no responsibility could be accepted for her difficulties. The adjudicator noted that the medical information on file showed that the worker had been having neck and shoulder difficulties dating back to at least 2009 and she had been diagnosed with "cervical chronic facet fibrosis with occipital neuralgia." She had "also recently been diagnosed with bilateral lateral epicondylitis in relation to [her] elbow difficulties."

The adjudicator noted the development of lateral epicondylitis was typically attributed to repetitive and forceful flexion movements of the wrist/hand. Low force repetitive activity such as the duties performed by the worker would not typically be considered provocative for development of this condition. The adjudicator concluded that the worker's job duties did not involve the anatomical movement associated with the development of bilateral lateral epicondylitis.

On June 9, 2014, the worker appealed the WCB's decision to deny responsibility for her difficulties. The worker described her job duties in detail and provided pictures related to her work area. The worker also submitted a report from a pain management specialist dated January 14, 2014 who stated:

My impression is that [the worker] has been suffering predominantly with a chronic mechanical neck pain/myofascial pain syndrome with associated paracervical myofascial trigger points. [The worker's] symptoms have been aggravated by repetitive strain at her workplace.

In a submission to Review Office dated August 25, 2014, the employer's representative outlined the position that the decision to deny the worker's claim was appropriate. The representative stated in part: "The job duties described in her appeal letter would not normally be associated with the various diagnoses provided by her medical practitioners of bilateral lateral epicondylitis, chronic cervical facet fibrosis, occipital neuralgia, or myofascial pain syndrome."

The employer's submission was provided to the worker for comment by Review Office based on WCB policy. A response from the worker dated September 8, 2014 is on file.

On October 2, 2014, prior to considering the worker's appeal, Review Office sought medical advice from a WCB medical advisor. The medical advisor stated:

Lateral epicondylitis is typically associated with activities characterized by a combination of repetitive, forceful and resisted grasping. Said activities do not appear concordant with job duties described on file (i.e. primarily inserting syringes into vials, inserting tubing into IV bags, preparing syringes by attaching and detaching them to a pump, and injecting medication into IV bags and vials).

A copy of the WCB medical opinion dated October 2, 2014 was forwarded to the worker for comment. The worker responded to Review Office by e-mail on October 3 and 6, 2014.

On October 7, 2014, the employer's representative was provided with the worker's submissions dated October 3 and 6, 2014. The representative responded to Review Office on October 20, 2014.

In a decision dated October 30, 2014, Review Office confirmed that the claim was not acceptable. Review Office considered the worker's job duties, specific to the work performed in the hood, and found the anatomical movements associated with these work activities were not consistent with the development of lateral epicondylitis. Review Office noted that the worker was diagnosed with bilateral epicondylitis on October 18, 2013, five weeks prior to reporting the injury to her employer, and that this delay in reporting her symptoms/condition to the employer was significant.

On April 24, 2015, the Worker Advisor Office asked Review Office to reconsider its decision based on new evidence from the treating chiropractor dated March 26, 2015, medical notes and copies of emails from co-workers which the worker felt supported her claim. The worker advisor submitted that the new evidence, along with the existing file information, supported a cause and effect relationship between her work duties as a pharmacy technician described by Review Office in its initial decision and the development of lateral epicondylitis.

Review Office then referred the April 24, 2015 submission to the employer's representative for comment, and the employer's representative submitted a response on June 1, 2015. A copy of the employer's submission was forwarded to the worker advisor, who provided a response dated June 9, 2015.

Review Office requested a copy of the worker's job description and the Physical Demands Analysis for her position as a pharmacy technician (Pharmacy Assistant) and the information was provided to the worker for comment.

On July 20, 2015, Review Office upheld the decision that the claim for compensation was not acceptable. Review Office stated that it was unable to find that the worker's job duties involved a combination of repetitive, forceful and resisted grasping associated with the development of a lateral epicondylitis condition.

Review Office referred to the March 26, 2015 chiropractic report and stated:

The chiropractor provided her viewpoint that based on the worker's description of her work "described as repetitive gripping and tearing labels while holding her arms up for a sustained period of time" and the etiology of lateral epicondylitis, her "disability" arose out of the nature of her work. Given the Review Office's earlier findings and the evidence as a whole, we are unable to reach the same conclusion. Considering the evidence before us, the Review Office determines an accident as provided by subsection 1(1) of the Act has not been met.

On July 24, 2015, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the oral hearing, the appeal panel requested that arrangements be made to visit the work site to view the job duties performed by the worker which she felt led to her elbow condition. The work site visit took place on March 9, 2016. On March 16, 2016, the panel met further to discuss the case and to render a decision on the issue under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

Subsections 1(1) ("accident") 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 accident that arose out of and in the course of his employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act

Worker's Position

The worker was represented by a worker advisor who made a presentation on her behalf. The worker responded to questions from the panel.

The worker's position was that her bilateral elbow difficulties, diagnosed on October 18, 2013, as lateral epicondylitis, were causally connected to performing her job duties.

While the worker had been employed in the same position for several years prior to the onset of her difficulties, it was submitted that the evidence demonstrated that a number of workplace changes had occurred simultaneously or successively over a relatively short period of time prior to October 2013 which, along with the physical demands described by the worker and those identified in the Physical Demands Analysis report ("PDA"), provided the most probable explanation for the development of the worker's condition at that time.

In terms of workplace changes, the worker advisor noted that the worker's accident report mentioned she contacted her manager in September 2013 to report having difficulties related to working 7 consecutive days in the TPN hood, and advised the adjudicator in December 2013 that she had been working under the hood 90% of the time, which was more than she was previously accustomed to. She also reported that they started using a new machine in the summer, which made twisting the tubing into bags more difficult. It was submitted that the use of this new compounder, and the problems with the tubing specifically, constituted a significant change.

The worker advisor further submitted that the employer-created PDA supported the worker's position on the appeal. While the overall position of a pharmacy technician was described in the PDA as "Light Medium", specific functional tasks such as gripping with power, pinching and fine motor skills were assessed to be a constant requirement. Elbow and/or forearm flexion was also said to be a frequent occurrence.

The worker advisor noted that without having had the opportunity to see the PDA, the WCB medical consultant stated that lateral epicondylitis is typically associated with activities consisting of "a combination of repetitive, forceful and resisted grasping." It was submitted that if a physical demand is assessed as being a constant requirement, it is also repetitive, and that gripping with power is similarly synonymous with both force and resistance.

The worker had provided a number of descriptions and pictures of the work and workplace, which were on the file. Additional pictures were submitted by the worker on January 28, 2016, in advance of the hearing, for consideration by the panel.

In response to questions from the panel, the worker described certain tasks in particular which she felt led to her condition, including:

• Inserting tubing into bags of different liquids which were hung from hooks or a bar at each station. The worker said that she would try to hold the bag still with her left hand while pushing the tubing into the bag with her right hand. The duties associated with this were the same when the new TPN compounder was installed, but the physical nature of the work had changed, in that the tubing was too big for the port on the bag where it was to go in, and she would have to work much harder at twisting and pushing the tubing in. The worker said that she would have to change bags and insert the tubing 20 to 25 times a day.

• Putting spikes into rubber stoppers on top of vials, to reconstitute them. The worker said that some of the rubber stoppers were really easy to poke, but others were harder. With the harder or thicker stoppers, she would have to use more force and twist the spike in. She said that the number of vials she would do would vary, depending on what they were making; there could be 400 vials in one batch and 5 in the next.

• Filling syringes. The worker said that there were a number of different sizes of syringes. She referred to a 60 ml. syringe, saying she would screw a needle on the end and poke the syringe into a vial, holding the vial with her left hand. She described how she would have to use the fingers of her right hand to pull the plunger out, noting that she would always be holding the syringe awkwardly and drawing the plunger back with her right fingers so as not to touch the barrel or any part that goes into the syringe.

Employer's Position

The employer was represented by an advocate and its WCB Coordinator. The employer's advocate advised that they agreed with the Review Office decision that the claim is not acceptable and the various diagnoses put forward by the worker's medical practitioners are not related to her work activities.

The advocate stated that the employer disagreed that a change in duties contributed to the worker's condition. In the employer's view, there were no significant changes in her work duties. In terms of scheduling, it was noted that the decision to schedule more shifts in a sequence was not a rotation change but a daily task assignment which had actually been requested by staff. It was submitted that the manager had to balance the needs of all staff, and that this was not, in any event, a significant change. It was noted that while the worker had said she was working 90% in the hood, this was difficult to quantify, but the employer believed that probably two-thirds or about 66% of the shifts would be in the hood overall in a six-week schedule. It was also noted that the worker was trained to do six out of the nine shift assignments for her job classification and her shifts would change over time based on her qualifications.

With respect to the compounder and the tubing problems, the employer did not dispute that there was a problem; the tubing was difficult to insert and the employer had to work to find a solution. It was noted that the TPN compounder was installed in February 2013, and an alternate type of tubing that was easier to work with was implemented in October 2013, resolving the issue. It was submitted that bags would have to be changed approximately 5 to 8 times during an 8-hour shift, so this was not repetitive constant gripping, forceful work over an extended length of time. As well, one hand would be used to steady the bag, while the other would be used to insert the tubing, so that even if it was difficult to insert the tubing, the motion of doing so would not result in bilateral epicondylitis. It was also noted that the worker worked this shift an average of 20 days in a 20 week schedule, or the equivalent of once a week, so this would amount to 20% of her shift assignments. It was further noted that the previous equipment required the same numbers of insertions, and that the only real difference was that a twisting motion and a little more force would be required to insert the tubing, which would be done with the dominant hand.

The advocate submitted that there is minimal medical information on file, and that what medical information there is, does not support a connection between the development of the worker's bilateral elbow condition and her work duties because the work she was doing did not involve the type of force or motion which would result in a problem in both elbows.

The employer asked that the panel accept the opinion of the WCB medical advisor, who indicated that the lateral epicondylitis is typically associated with activities involving a combination of repetitive forceful and resisted grasping. It was submitted that it would have made no difference if the medical advisor had seen the PDA, as the PDA does not indicate that there is repetitive forceful and resisted grasping, especially with both hands. The worker advisor noted that there is, of course, hand manipulation or dexterous work with the hands, but this does not translate into such a strain as would cause a "tennis elbow condition" in both arms. It could also be assumed that the WCB doctor would be familiar with the specific activities or duties, including inserting tubing, working with syringes and others.

Finally, it was submitted that the fact that the worker's condition is bilateral points to a non-occupational cause, and the fact that the worker's condition has not improved with the passage of time, even though she was away from work for a period of time and then worked alternate duties, also validated the employer's position that the cause of her ailments lay elsewhere than in her work duties.

Analysis

The issue before the panel is claim acceptability. In order for the worker's appeal to be successful, the panel must find that the worker's bilateral lateral epicondylitis was causally related to her employment. The panel is unable to make that finding.

Having carefully considered the information on file and the evidence at the hearing, and having attended on site and reviewed the particular jobs which the worker had described, the panel has concluded, on a balance of probabilities, that the worker's job duties would not have resulted in the development of a lateral epicondylitis condition in either or both arms.

The panel adopts the WCB medical consultant's statement that "Lateral epicondylitis is typically associated with activities characterized by a combination of repetitive, forceful and resisted grasping." The panel notes that bilateral epicondylitis presents an additional challenge in that it is often associated with systemic or non-work-related causes, but can in any event be found to be caused by work if the evidence shows that both elbows were exposed to the types of occupational hazards that could lead to the development of lateral epicondylitis in each elbow.

While the worker described her duties in detail at the hearing, the panel found it very helpful to attend at the site and review the jobs with the worker present. The panel paid particular attention at that time to the duties which the worker had identified at the hearing as being particularly problematic. The panel notes that while some of those tasks could potentially cause her difficulties, we were unable to conclude that there was sufficient force, repetition or frequency to find that these tasks or the worker's duties in general did cause her lateral epicondylitis condition in either arm.

With respect to the new TPN compounder in particular, the panel notes that there was conflicting evidence as to how often the bags had to be changed and the tubing inserted, the employer having said that this would happen 5 to 8 times a day and the worker having said 20 to 25 times a day. While the panel was unable to see the original tubing, we accept that inserting that particular tubing would likely have required a significant amount of force. The panel is nevertheless satisfied, on a balance of probabilities, that even at the higher range of times per day, there were significant rest cycles during the day and this particular job duty would not have caused the worker's condition.

The panel notes that although the worker had originally indicated that she would spend 90% of her time "in the hood", she acknowledged during the course of the hearing that one of the shifts which she would do for a week at a time would be out of the hood, and agreed that she would therefore not be in the hood much more than two-thirds of the time.

In summary, the panel's general impression of the worker's job duties was that the job was relatively fast-paced and included a number of tasks which involved the hands and elbows, but that overall there was far more "busy" work than work involving prolonged or sustained force and repetition that would be causative of lateral epicondylitis in both elbows or either one of them.

Based on the above and on a balance of probabilities, the panel is unable to relate the worker's lateral bilateral epicondylitis to the work duties which she was performing as a pharmacy technician.

As a result, the panel finds that the worker did not suffer a work-related injury within the meaning of subsections 1(1) and 4(1) of the Act, and her claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 5th day of May, 2016