Decision #158/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable. A hearing was held on September 19, 2016 to consider the worker's appeal.
Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.
Background
On February 19, 2013, the worker filed a claim with the WCB for an elbow injury that occurred at work on October 9, 2009 which he related to the repetitive use of his left elbow when using a post hole pounder.
The worker stated that he had tingling and it hurt for approximately two weeks. Then he changed jobs and did not use his left hand at all. The less he used it the better. He then noticed atrophy in his hand. Four to five months later he saw a specialist and was diagnosed with cubital tunnel.
The worker indicated that he did not report his injury because he was afraid of losing his job. He knew he was leaving this job to go to another job. The worker identified a co-worker he was working with in October 2009.
The Employer's Injury Report dated March 14, 2013 noted that the worker reported the October 9, 2009 accident on March 12, 2013. In a letter attached to their report, the employer noted that the worker and a coworker were pounding snow fence markers into the ground. They had been switching on and off on the job and the job was almost complete. The marker the worker was pounding on hit some resistance such as a rock or concrete in the ground. This resulted in a strong vibration back up and into the worker's hand and severe tingling to his left arm from his fingertips to his elbow. The initial tingling lasted for 2 weeks. The worker followed previous advice from his doctor to rest and ice the injury. The worker went to see his doctor in December 2010 when his symptoms returned. After a number of doctor visits, surgery was eventually performed and the worker's arm condition showed some improvement but his symptoms still persisted.
The employer said the worker did not initially report his injury as he had related it back to a previous injury with a previous employer. He was also due to be posted into a new position in the central heating plant and felt that this job would be less demanding on his hand. As a term employee, the worker did not want to jeopardize a chance of permanent employment.
On November 16, 2012, the worker advisor office provided seven witness statements and a photograph of the worker with the post pounder.
In a memo to file dated March 5, 2013, a WCB case manager said she reviewed prior claims for the worker's left elbow. She noted that the worker was claiming for left ulnar neuropathy and the surgery of September 2011. The worker said he always stated that he never recovered from his initial injury in January 2008. Through the years and intermittently, his left elbow condition would become aggravated while performing his job duties. At the advice of a worker advisor, the worker said he was submitting this claim as a worsening condition due to the post-hole pounding job duties.
On March 11, 2013, the worker submitted a job description related to positions with the employer.
On May 2, 2013, a WCB medical advisor answered questions posed by the case manager regarding the probable causes and activities associated with the worker's left elbow condition/diagnosis, whether the medical information and the September 2011 operative report revealed evidence of a specific traumatic injury and whether there was a relationship to the job duties of hitting a rock using a post-hole pounder in October 2009.
In a decision dated May 6, 2013, it was determined by Rehabilitation and Compensation Services that the worker's claim was not compensable as it was unable to find a relationship between the job duties associated with post-hole pounding and the diagnosis of ulnar neuropathy. The worker was advised of the WCB's medical opinion that the cause of ulnar neuropathy at the elbow was typically idiopathic or of an unknown nature. Based on nerve conduction studies and EMG reports from 2011, it was felt that the findings were concordant with left ulnar neuropathy that pre-dated the 2009 job duties. The medical information did not indicate a probable specific structural lesion or aggravation emanating from the October 2009 pole pounding duties. No medical treatment was sought until one year later, the June 7, 2011 neurologist's report indicated that "recent MRI of the left elbow was normal" and the September 2011 operative report did not show findings of previous traumas or bony abnormalities, but rather the usual anatomical points of compression. A relationship between a specific incident of using the post-hole pounder and hitting a rock in the ground and an aggravation or direct cause of ulnar neuropathy could not be established. Medical information on file did not provide findings of a previous specific trauma.
On May 24, 2013, the worker appealed the May 6 decision to Review Office. The worker referred to specific information related to his previous WCB claims. The worker summarized:
"…it is my position that the repetitive post pounding incident which required over the head repetitive lifting, grasping and flexion of the wrists along with the blunt impact of the post pounder hitting an obstacle in the ground worsened my reoccurring left elbow condition. Scarring resulted causing the space in my left arm region to compress as [neurologist] stated bringing on the gradual onset of ulnar neuropathy."
To accept the worker's appeal, Review Office stated on June 27, 2013, that the evidence must support that a new injury was caused on October 9, 2009 or an aggravation/enhancement of a pre-existing condition had occurred. The file evidence did not support this finding and on balance of probabilities, the worker did not have an accident as defined by the Government Employees Compensation Act ("GECA").
Review Office referred to neurological reports on file starting in January 2011. In a neurologist report of June 7, 2011, it referenced the worker leaning on his elbow while driving a truck. The report stated, in part: "That is approximately when he began to notice gradual onset of numbness and weakness in the ulnar distribution." The description provided by the worker did not include any complaints while performing post hole pounding duties.
Review Office commented that the worker reported that his left arm symptoms changed in October 2009; however, he did not seek medical attention around that time.
Review Office noted that the worker initially related his current left elbow difficulties to an accident occurring in 2000. This was previously denied by the Appeal Commission. The worker then filed a claim stating that his difficulties were due to an activity performed on October 9, 2009. Although the worker mentioned difficulties with post hole pounding during the testimony at the November 2012 Appeal Commission hearing regarding the 2000 claim, Review Office could not conclude that this activity caused the worker to be injured.
As well, Review Office did not place weight on a co-worker's statement dated March 2013 who said he was aware of the worker hurting his elbow in October 2009, as this statement was approximately three and half years after he had worked with the worker.
On June 9, 2014, Review Office considered a report by an occupational medicine physician dated March 12, 2014 who opined that there was a causal link between the worker's work activities in 2009 and the need for cubital tunnel surgery in September 2011. Review Office stated that it did not place weight on the report as the medical opinion was speculative in nature.
On November 17, 2015, the worker appealed Review Office's decision of June 9, 2014 to the Appeal Commission and an oral hearing was arranged.
Reasons
Applicable Legislation
As the worker was employed by a federal government agency or department at the time of his alleged accident, his claim is adjudicated under the GECA, which provides that an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including "a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."
Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “Act”) of Manitoba. The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB Board of Directors.
Worker's Position
The worker was self-represented.
The worker explained that:
Simply put, the condition of my hand progressed gradually, and I mean very gradually, and I was unaware at the time what was causing this to happen.
He said that he never recovered from his first injury in 2000, which occurred when he was using a drill which caught and twisted his arm and injured his tendon. He confirmed that his appeal relates to the weakness and numbness he feels in his left hand. He believes that he had medial epicondylitis which progressed into ulnar neuropathy and then cubital tunnel syndrome. The worker advised that he tried to set up a claim for an injury which was caused by all his job duties over the years, but the WCB representative told him he required a specific date and incident to establish a claim. He saw the post pounding incident in March 2009 as worsening his condition, and since it was the last incident before he had noticeable atrophy, he used it as the specific incident. He acknowledged that he had problems before 2009 and that it worsened after 2009.
The worker advised that in April 2002, he was diagnosed with recurring tenderness issues, to the point that his physician advised he will be unable to work in positions where he needs to use his elbows. The physician recommended that he find a more sedentary job.
Referring to his prior appeal on his 2000 claim, the worker advised that the WCB had used the lack of medical information on file after 2002 as a major reason to deny acceptance of his claim.
The worker said that his condition may be related to driving duties he performed after 2009. He said he drove about two hours each day. He usually wore a heavy coat and rested his left elbow on the armrest. He advised that occasionally his hand would "get funny" but it was worse with post hole pounding.
Regarding the post hole duties, he advised that these duties lasted, at most, two weeks each year. He said that he wore a tensor bandage on his elbow as a precaution when he did heavier work. He said that he does not think using the post hole pounder caused his problem but that it worsened it. He said that he worked with a partner and that they would pound about 200 to 300 posts in total, approximately 10 per day and that they took turns using the pounder.
Employer's Position
The employer did not participate in this appeal.
Analysis
The worker is appealing the WCB decision that his claim arising from his workplace duties in 2009 is not acceptable. For the worker's appeal of this issue to be approved, the panel must find that the duties the worker performed in 2009 caused or aggravated/enhanced his left hand injury. The panel is not able to make this finding.
At the hearing, the worker indicated that his left hand condition existed prior to 2009. He believes it is related to his 2000 injury. However, the WCB and Appeal Commission earlier found that he recovered from his 2000 injury. He said that his arm still bothers him and that it may be the result of his various duties commencing before 2009. He attempted to make a claim but was advised that he required a specific date and cause so focused on the post hole pounding that he performed in 2009 as his hand worsened after performing these duties.
The panel has considered the worker's description of his duties in 2009 and the worker's condition, ulnar neuropathy. The worker identified the use of a post hole pounder and driving a van for up to two hours each day as possible causes of his injury. The panel is not able to relate the worker's ulnar neuropathy to the activities involved in post hole pounding or driving. The panel finds that the movements and actions involved in using a post hole pounder would be unlikely to impact upon the worker's ulnar nerve in the cubital tunnel and agrees with the May 2, 2013 WCB medical consultant in that regard. The panel also finds that the amount of driving, two to three hours per day on short trips mainly within the city, would be unlikely to be a cause of ulnar neuropathy. The panel also notes that the worker did not seek medical attention at the time of the accident. The panel finds that the worker's claim is not accepted.
The panel notes the worker believes his current difficulties are due to the cumulative impact of all his duties and physical labour upon his arms.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of October, 2016