The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") with respect to her claims for injuries occurring on April 17 and August 25, 2015. A hearing was held on November 7, 2016 to consider the worker's appeals.

Issue

Accident date: April 17, 2015

Whether or not the worker is entitled to wage loss benefits and/or medical aid benefits.

Accident date: August 25, 2015

Whether or not the claim is acceptable.

Decision

Accident date: April 17, 2015

That the worker is not entitled to wage loss benefits and/or medical aid benefits.

Accident date: August 25, 2015

That the claim is not acceptable.

Background

Accident date: April 17, 2015

The worker filed a claim with the WCB for a right shoulder injury that occurred on April 17, 2015.

When speaking with a WCB adjudication supervisor on October 2, 2015, the worker reported that her right hand was on a chair at work when it moved backwards. The motion pulled her arm back and she fell with all her weight onto both hands. The worker described a "backwards crab position." The worker said she reported the injury to her employer right away and filled out a report. She felt the accident exacerbated her hand condition but she continued to work. Over the course of time since April 2015, her hands/arms got worse as she performed her work duties. She reported the injury and her ongoing difficulties to her supervisor and noted a co-worker who witnessed the injury. The worker said she was having difficulty with gripping tasks and fine motor manipulation.

File information showed that the worker sought medical treatment on April 28, 2015. The treating physician noted that the worker "injured right arm at work April 17, went to sit down while holding the back of chair which slid - hyperextension & external rotation of the right shoulder - claimed WCB - did not miss work."

A Physiotherapy Assessment Report dated August 25, 2015, stated the worker was treated for bilateral carpal tunnel syndrome (CTS), soft tissue hand or tendon pain. The symptoms were suggestive of arthritis at the base of the thumb. There was good range of motion of the digits/wrist with decreased grip strength left versus right, pinch strength equal bilaterally. No remarkable findings.

In a memo to file dated October 16, 2015, a WCB adjudicator documented information she obtained from the treating physician who stated that when he saw the worker on April 28, 2015, it was for a physical examination and that was when the worker reported the accident of April 17, 2015 with the chair. The diagnosis in relation to the accident was a muscle strain of the right arm/shoulder. The worker was then treated for other medical issues on July 7 and August 11, 2015.

On November 2, 2015, a supervisor confirmed that the worker reported the April 17, 2015 accident when it occurred and that she continued to work her full regular duties.

On November 20, 2015, the WCB accepted that an accident occurred on April 17, 2015 but found that the worker was not entitled to any compensation benefits beyond April 28, 2015 as the employer was unable to confirm the worker's ongoing complaints and there was no ongoing medical evidence to support a causal relationship between her current bilateral hands/arms difficulties and the compensable injury of April 17, 2015. On May 26, 2016, a worker advisor appealed the decision to Review Office.

In decision dated July 20, 2016, Review Office determined there was no entitlement to wage loss or medical aid benefits in relation to the worker's right shoulder injury of April 17, 2015. Review Office found that the worker sustained a minor strain/sprain injury on April 17, 2015 and that her symptoms were such that she did not feel the need to seek immediate medical attention for her injury. Rather, she mentioned the injury to her doctor when she attended him for an unrelated matter on April 28, 2015. In August 2015, the worker's doctor referred her to physiotherapy but there was no indication that it was related to the worker's right shoulder.

Accident date: August 25, 2015

The worker submitted a claim to the WCB for injury to both hands and arms with the accident date of August 25, 2015. The worker believed that her injuries were related to her job duties which required a lot of squeezing, pinching, twisting and gripping which exacerbated the pain.

On October 2, 2015, the worker spoke with a WCB adjudicator and provided details regarding her current status, the medical treatment she received and details of her job duties. The worker reported that in 2008, she fell onto her outstretched right hand and it was not work-related. In 2012, she had filed a claim for a cumulative injury since 2008 and her claim was accepted for right third trigger finger and right trigger thumb.

The WCB obtained medical reports from the worker's healthcare practitioners which were reviewed by a WCB medical advisor on March 14, 2016.

On March 15, 2016, the worker was advised that her claim for compensation was denied as the WCB was unable to establish a link between the development of her symptoms and an accident occurring at work. On May 26, 2016, the worker advisor appealed the March 15, 2016 decision to Review Office.

On July 20, 2016, Review Office confirmed that the claim was not acceptable. Review Office acknowledged that the worker's duties required some fine motor skills but also that the duties varied during a shift and the positions were rotated. It did not find the duties required forceful or prolonged movements.

Review Office determined that the worker's bilateral hand, wrist and forearm difficulties were not related to her work duties nor was her pre-existing condition aggravated by the work duties. The worker had difficulties since 2008 and Review Office was unable to find an occupational cause for her increased symptoms in 2015.

Review Office noted that there was no mention of left trigger finger of the second, third, fourth or fifth fingers in the medical reports until February 2016. At that time, the worker had been off work since November 2015. Review Office was unable to find that doing some duties with her left hand due to right hand difficulties would result in the worker developing left trigger finger in four fingers.

On July 22, 2016, the worker advisor appealed Review Office's decisions dated July 20, 2016 to the Appeal Commission and a hearing was arranged.

Following the hearing that was held on November 7, 2016, the appeal panel asked the employer to provide them with a video related to the worker's job position as well an ergonomic assessment report from 2014. The requested information was later received and was forwarded to the worker for comment. On January 4, 2017, the panel met further to discuss the worker's appeal and rendered its decisions on the issues under appeal.

Reasons

Applicable Legislation and Policy

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) 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 injury by accident that arose out of and in the course of employment.

Subsection 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(1) of the Act provides that wage loss benefits will be paid "…where an injury to a worker results in a loss of earning capacity…"  Subsection 39(2) provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, as determined by the WCB, or the worker attains the age of 65 years.

WCB Policy 44.10.20.10, Pre-existing Conditions, deals with cases where worker has a pre-existing condition which is affected by a workplace accident.

This appeal deals with 2 claims and 2 issues.

Worker's Position

The worker was represented by a worker advisor who provided the panel with a written copy of her submission.  The worker answered questions posed by her representative and the panel.

Issue 1: Accident Date April 17, 2015 - Whether the worker is entitled to wage loss and/or medical aid benefits.

The worker described and demonstrated the accident to the panel:

…I was going to my job and the chair was sitting, and I put my hand on the chair and I was going to slide it towards myself to sit down. This chair is a little more difficult, it’s got a slippery seat, but I went like this to sit down, but what happened was the chair, I lost control of the chair and it ended up now, this is on carpet, but on the floor, the chair ended up sliding backwards and I completely lost control of it, so now I’ve got all my weight on this chair.

I ended up sort of in a backwards crawl position with this hand on the floor…and the chair didn’t stop until it hit the back counter, which was a distance of about six feet. So I was like, in this backwards crawl position with my weight on my already damaged hands.

The worker advised that on April 20, 2015, she completed an incident report with her employer.  As she had a medical appointment booked for April 28, 2015, she waited until this appointment to obtain medical advice regarding her injuries.  She advised that her physician diagnosed her right shoulder as hyperextension and external rotation or a strain.  She believes that the accident worsened her bilateral hand and finger pain and that she felt more noticeable trigger symptoms.

Issue 2: 

Accident Date August 25, 2015 - Whether the claim is acceptable.

The worker claims her current injuries are caused by her many years of working for the employer.  She dates the injury back to 2008 and submits that her duties since that date have aggravated her condition.  

The worker's representative submitted that:

It is [worker's] opinion her work duties significantly contributed to the onset of her right ring finger trigger finger and her left second, third, fourth and fifth trigger fingers.  It is also [worker's] opinion her new work duties in [department] caused her bilateral pre-existing wrist, forearm and thumb conditions to become more symptomatic.

The worker advised that she has worked at her job since May 2006.  With respect to her job duties she said that the requirements of most of her job duties relies on pinching, squeezing and grasping repetitively.  She said this causes pain and swelling and led to trigger finger in most of her digits. 

The worker advised that in 2011 she developed trigger finger in her right thumb and right middle digit as a result of a cumulative injury. 

The worker advised that she has progressive hand, finger and thumb pain, and swelling, which she treats with daily ice and therapy.  She said that the repetitive pinching, squeezing and gripping have worsened her finger movements and that she has developed trigger finger.  Also her right forearm has tendonitis which causes intermittent excruciating pain.

She said that she was assigned a different position in April of 2014 because she reduced her work week to 0.8, which is four days a week, from a full-time position.  She did this to help with her worsening symptoms.  The worker described her duties in this position.  She noted there are 4 components to her position and that a usual rotation is one week in each area.  

The worker advised that there are "…no jobs…[departments] that you can only use one hand, you’re using both your hands, always to hold something and do something with the other hand."

The worker was asked what activities affected her right hand and left hand trigger finger the most.  The worker advised that the force, the holding and the gripping of waxing blocks.  She also noted the twisting in this job.

The worker was asked whether there was a particular duty which aggravated her thumbs the most.  She said "…thumbs are sort of a necessary part of any gripping or pinching, so I use my thumbs more than any other fingers, really, because it’s necessary."

With respect to whether there was a particular duty that aggravated her wrists and forearms, she advised that the testing of a specific substance and the pouring of the substance.  She said that she noticed an increase in wrist forearm symptoms within a couple of months of working in departments.

Overall, the worker expressed concern about the volume of fine motor skills involved in her duties including repetitive pinching and grasping.

The worker also described the various treatments which she used for her injuries.  She advised that her family physician has prescribed modified duties, physiotherapy, occupational therapy, braces, surgery, T3, ice therapy, rest, lotion/cream, and time off from work for recovery.

The worker acknowledged that she has pre-existing conditions but that they are not the cause of her current difficulties.  She advised that her family physician says her condition is tendinopathy.  The physician has outlined permanent restrictions.

The worker's representative submitted that the worker sustained an injury to her right fourth finger and her left second, third, fourth and fifth fingers while performing her work duties during the course of her employment.  She said that performing repetitive fine motor activities was the predominant cause that resulted in injury to the worker's left and right hand fingers.   

The worker's representative advised that the worker believes the medical information shows her pre-existing bilateral wrist, forearm and thumb conditions became progressively worse after she began performing new duties in departments.  She believes that she sustained an aggravation of a pre-existing condition that meets the requirements of subsections (1) and 4(1) of the Act and policy 44.10.20.10, Pre-existing Conditions.

In her closing comments, the worker read into the record a letter from her family physician. The family physician advised, in part, that the worker:

• has progressive bilateral hand, finger and thumb pain as a result of her repetitive hand gripping and holding at work.
• experiences pain and swelling.
• has a right fourth finger, fourth trigger finger as well as trigger fingers in her left finger, second, third, fourth and fifth.
• experiences bilateral thumb pain which is exacerbated when she extends and abducts her thumbs.
• cannot hold an object for any length of time.
• has received treatment for tendinopathy including modified duties, physiotherapy, occupational therapy with braces, as well as plastic surgery.

Employer's Position

The employer was represented by its Manager of EHS/Disability.  The employer representative provided information on the worker's duties and answered questions from the panel about the duties.

Analysis

Issue 1:

Accident Date April 17, 2015 - Whether the worker is entitled to wage loss and /or medical aid benefits.

The worker is seeking wage loss and medical aid benefits for injuries she claimed resulted from a fall at work on April 17, 2015.  For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity and required medical aid for her injuries.

The panel finds, on a balance of probabilities, the worker is not entitled to wage loss and medical aid benefits resulting from the April 17, 2015 workplace accident. 

The panel notes that the worker did report the accident to her employer and to her family physician.  However, the panel finds that the evidence does not support a finding that the worker sustained a loss of earning capacity and required medical aid in relation to her shoulder injury and hand issues arising from the April 2015 accident.  In making this decision, the panel attaches significant weight to the fact that the worker did not seek immediate medical attention for the injury and continued to work at her regular duties. 

The worker advised that she required physiotherapy treatment for her right shoulder injury and exacerbation of her right hand/forearm condition.  However, the family physician's August 11, 2015 referral for physiotherapy indicates "Diagnosis:  Bilateral Carpal tunnel & Hand Soft Tissue tendon/Joint Pain".  The referral does not refer to the right shoulder. 

The panel notes that in his October 28, 2016 letter, the worker's treating physician commented that "it was an oversite" that the referral to physiotherapy did not specifically include a reference to the worker's right shoulder.  The panel notes that regardless of whether there was a reference to the right shoulder, the evidence does not show that the physiotherapist provided treatment to the worker's right shoulder.

With respect to the worker's hand issues, the physician's "Doctor First Report" dated September 1, 2015, indicates that the injury "Dates to July 2008 relating prior hand issues relating to outstretched hands."  This report also included a reference to a referral to physiotherapy for "bilateral wrist braces." 

The panel dismisses the worker's appeal on this claim. 

Issue 2: 

Accident Date August 25, 2015 - Whether the claim is acceptable.

The issue before the panel is whether the worker's claim is acceptable.  The worker claims that her current injuries are caused and/or aggravated by her workplace duties.  For the worker's appeal of this issue to be approved, the panel must find, on a balance of probabilities, that the worker was injured by an accident arising out and in the course of her employment.  The panel was not able to make this finding.

The panel notes there was significant information on the worker's file pertaining to the worker's job duties with the employer.  Additional information was added at and after the adjournment of the hearing.

The panel has carefully reviewed and considered the worker's job duties. The panel has considered the four components of the worker's job, which were done in weekly rotation.  The panel also reviewed the ergonomic report of the worker's job areas, duties and corrective measures.  

The panel also notes there was significant medical information on the worker's file, including the information from the worker's hand surgeon, hand physiotherapist, and family physician.   

The panel has considered all this information and concluded that the worker's current medical conditions are not related to her employment.  Specifically, the worker's current condition is not the result of cumulative work with the employer. 

In reaching this decision, the panel attaches significant weight to the March 14, 2016 opinion of the WCB medical advisor.  In summary, the medical advisor observed and commented that:

• the worker was assessed by a hand physiotherapist who provided a diagnosis based on the August 25, 2016 assessment of "Chronic joint/muscle pain bilateral extremities, client feel made worse by work." Given the lack of clinical findings, the current diagnosis appears to be chronic non-specific bilateral extremity pain.  She noted that the family physician has described these symptoms as longstanding and chronic.
• the family physician also identified bilateral carpel tunnel symptoms.  A neurologist interpreted electrophysiologic studies as demonstrating bilateral median focal neuropathy at the wrist, of mild to moderate degree on the right and of a moderate degree on the left, with no EMG evidence of median axonopathy on either side.  In August 2012, a plastic surgeon found the worker to no longer be symptomatic of her median neuropathy.  She noted that the worker's current symptoms "are not suggestive of clinical carpal tunnel syndrome."
• in 2009 a rheumatologist noted "tenderness but no significant swelling of multiple small joints of both hands and feet as well as the left ankle."  She noted that based on the rheumatologist's account, it is likely that some of the worker's hand symptoms are related to the systemic condition.
• it is reported that a February 14, 2012, left wrist MRI demonstrates a possible dorsal radioulnar ligament insufficiency of unknown etiology and of degenerative change in the left trapezio-scaphoid joint, which may contribute to the worker's left wrist.
• a February 2, 2016 physiotherapy report provides a diagnosis of de Quervain's tenosynovitis.  She noted that it appears the worker did not have this condition in August 2015 as per a hand physiotherapist's report.  She commented that given the worker has not been seen since November 1, 2015, with no new diagnosis beyond "chronic joint/muscle pain bilateral upper extremities, client feels made worse by work," it is unlikely that the de Quervains' tenosynovitis is medically accounted for in relation to workplace activities.             

The panel also notes the findings of the 2014 ergonomic report.  The recommendations spoke to adjusting the chair and relocating her to work at a lower part of her bench.  The chair was changed to a swivel sit/stand stool to reduce side to side motions, and a foot rest bar was included to reduce stress on her lower back.  Training and diagrams were provided on optimal sitting positions, elbow and wrist positions, line of sight adjustments and how to sit related.  The panel finds the ergonomic assessment was not a result of upper extremity problems.

Based on the above analysis, the panel finds that the worker's claim is not acceptable.

The worker's appeal on this claim is dismissed.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of February, 2017