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 September 15, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

The worker filed a claim with the WCB for symptoms in her left arm, elbow and neck which started in May 2015 that she attributed to the following work activities:

I wrap meat (tray it up and wrap it), lifting heavy cases of meat (from 50 to 200 cases in a day), stocking and hanging tickets (two-handed jobs), and ordering meat on a computer.

Very heavy workload as well as there is a door that is not currently working properly. When you go in and out of the door onto the sales floor, you have a twirly (where you put meat and it twirls around). The door doesn't swing open as it should, and you have to bang it 3 or 4 times to get it to swing, which puts pressure on my arms.

The worker stated she reported her injury to the employer on June 22, 2015, and the reason for the delay in reporting was that she thought her condition would go away.

The employer's accident report dated July 15, 2015 stated: "There is no specific incident, only repetitive work tasks."

Medical information showed that the worker was treated on July 10, 2015 regarding left arm pain that she had since May 2015. The worker reported that her work involved a lot of repetitive arm movements. She was assessed with left elbow lateral epicondylitis/wrist extensor tendonitis.

A WCB adjudicator contacted the worker and the worker's supervisor to obtain more information related to the worker's job duties and her reporting of symptoms.

By letter dated September 2, 2015, the worker was advised that the WCB was unable to establish a relationship between the onset of her left arm/elbow difficulties and her workplace duties as there was no change in her job duties, no increase in workload, and a delay in reporting and in seeking medical treatment.

On October 23, 2015, a worker advisor asked Review Office to reconsider the September 2, 2015 decision. The worker advisor submitted that there did not have to be a specific accident for the claim to be acceptable, that the evidence showed there was a noted change in work demands that satisfied the definition of an accident. There was no delay in the worker's report of injury to her employer, and the medical information supported a relationship between the worker's injury and her employment.

On December 9, 2015, the employer's representative wrote to Review Office indicating that the employer agreed that a relationship between the onset of the worker's left arm/elbow difficulties and her job duties had not been established. A copy of the employer's submission was provided to the worker advisor and her response is on file dated December 21, 2015.

On December 30, 2015, Review Office determined the claim was not acceptable as it was unable to find a causal relationship between the worker's left arm/elbow difficulties and her work duties.

Review Office determined that the work duties did not involve repetitive resisted or forceful wrist extension or impacting motions that are associated with the development of lateral epicondylitis or wrist extensor tendonitis. Review Office could not establish that there was an increase in the workload that contributed to the worker's epicondylitis condition or that the problems associated with the swinging door led to her condition. Review Office concluded the worker did not have an accident as defined in the Act.

On January 21, 2016, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged. Written submissions were provided by both the worker advisor and the employer in advance of the hearing.

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 provide that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

Worker's Position

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

The worker's position was that her left lateral epicondylitis injury was related to her employment duties and the claim is acceptable. It was submitted that the worker's duties were very physical, and the demands of the job, which included heavy lifting, gripping and holding, placed stresses on her forearms and elbows which resulted in the development of her condition.

The worker advisor referred to medical literature which she had submitted in advance of the hearing. She noted that the literature confirmed that lateral epicondylitis is an overuse injury caused by microscopic tears which continue to gradually worsen, and submitted that this was what had happened with the worker's injury, as her symptoms were reported to have gradually increased as she continued to perform her duties. The advisor further submitted that the occupational risk factors for the worker's condition, as identified in the literature, including stressful gripping, twisting, reaching, moving without allowing the body to recover, and stressful gripping involving inward and outward movements of the forearm, were actions which formed part of the worker's employment duties.

The worker advisor noted that the worker had been moved to a new store in January 2015. She also noted that there was a confirmed increase in the worker's workload between January and May, after one employee transferred out of that store and a co-worker retired, leaving her with an increased workload as well as new staff which she had to train.

It was submitted that these changes in the worker's location and her employment obligations were responsible for her injury, as she had not previously experienced any problems with her elbows, arms or hands.

The worker advisor further noted that the worker's attending physician confirmed the worker's injury of left lateral epicondylitis and confirmed her report that her injury started at work, with intermittent swelling and pain since May 2015. It was submitted that the report and diagnosis of the attending physician further support a relationship between the injury and her employment as a basis for accepting her claim.

In summary, it was submitted that there is sufficient evidence that the worker's injury of lateral epicondylitis arose from her employment, and her claim is acceptable.

Employer's Position

The employer was represented by an advocate and a staff person. The employer's position was that they agreed with the adjudication on file, that the claim was not acceptable.

The employer's advocate submitted that the worker's duties as described would not have caused the worker's injury. Risk factors which are typically associated with epicondylitis are stressful gripping and torqueing while one is gripping. In this situation, the worker was not gripping hard, and no torque was involved. Lifting weight alone on a sporadic basis would not typically lead to epicondylitis.

The advocate acknowledged that there were certain expectations in terms of the worker's performance, but submitted that there was also some flexibility in how she was able to perform her duties. She performed a variety of tasks, and could rotate and change her tasks, change positions and pace herself.

With respect to the worker's reference to difficulties with the door onto the sales floor, the advocate submitted that if the worker really had a problem with a door jamming and causing her pain, she would have found an easier and less stressful way to go through the door, such as using her backside instead of her arms to push the door open. The advocate further noted that the worker did not mention that the door was bothering her until after she had brought in a medical report to the employer.

The advocate noted that there was no change in the worker's condition when she went on holidays for two weeks during the summer. While she was not suggesting that the worker's condition would have resolved over those two weeks, she submitted that one would have expected the symptoms to have at least subsided to some extent when the worker was away from the workplace if her condition was indeed caused by her job duties, but that did not occur. After her vacation, she returned for one week on modified duties, then went off work totally and was unable to perform any work tasks until November 3. The advocate submitted that the medical information supports that if you remove the aggravating factors, the tissues will repair and the person will get some relief from the symptoms. Again, it was submitted that one would have expected her to have progressed or recovered more quickly once she was absent from the workplace if it was her job duties that were causing her condition.

Analysis

The worker is appealing the WCB Review Office decision that her claim for a workplace injury is not acceptable. For the worker's appeal to succeed, the panel must find that the worker's left lateral epicondylitis condition was causally related to the performance of her job duties. The panel is able to make that finding for the reasons that follow.

In the course of the hearing, the worker advisor confirmed that the proposed and only diagnosis which they were advancing at this time was a diagnosis of lateral epicondylitis. There was no issue with respect to the diagnosis of the worker's condition being left lateral epicondylitis, and the panel accepts that diagnosis.

The evidence shows that the worker was transferred to a new store in January 2015, and her symptoms developed some five months later, in May 2015. The worker moved from a larger store to a smaller one, and based on the information provided at the hearing, the panel is satisfied that this was a significant change because of factors unique to the second location. The panel acknowledges that the worker's workload increased between January and May 2015, with the departure of two of her co-workers, but finds that this was not the specific cause of the worker's left lateral epicondylitis condition.

The panel carefully questioned the worker with respect to all of her job duties, and the actions and forces involved in performing those duties.

The panel focused in particular on the worker's detailed description of the difficulties she encountered going through the door to the sales floor. The worker would move product onto the sales floor using a round three-wheeled metal cart known as a twirly or whirly. The surface part of the twirly was below waist height and there was a metal handle at chest height. The worker would put product onto the twirly in the back room, wheel it out to the sales floor through a swinging door, arrange the product on the counter, and return to the back room. The worker said that the door was not working properly. It had a rubber seal at the bottom which was much too big and would fold over, and the door would become jammed each time you went through it. As a result, the worker would have to use considerable force and bang the door several times with the twirly in order to get the door open. The worker estimated that she would refill the twirly and go back and forth through the door every 15 minutes or so, for a total of about 4 hours a day. The panel was of the view that this repeated sudden multiple jarring resulted in significant compression forces on the worker's forearm muscles.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's left lateral epicondylitis was causally related to the performance of her job duties, and the worker's claim is therefore acceptable.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of November, 2016