The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the development of her forearm, wrist and ring finger conditions were not related to her job duties or an accident arising out of and in the course of her employment. A hearing was held on February 2, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On May 14, 2014, the worker filed a claim with the WCB for injury to her right forearm, wrist and ring finger which she related to her job duties as a housekeeper.  The worker provided the WCB with detailed information regarding her job duties, the onset of her symptoms, and reasons for her delay in seeking medical treatment.  The worker reported that her right ring finger started to act up in November 2013, and that she had not worked since February 2014 because of her symptoms. 

The Employer's Accident Report dated May 21, 2014 indicated that the worker reported right ring finger difficulties on May 20, 2014.  The worker initially reported that her doctor told her it was not work-related.  The worker said a lump on the inside of her hand was causing the trigger finger and the lump would probably have to be removed.  She later reported that her doctor told her she had carpal tunnel and it was work-related. 

Initial file information contained a job description concerning the worker's job duties and a May 26, 2014 memorandum detailing a phone conversation the worker had with a WCB adjudicator.  It was indicated that her claim would also be considered for left wrist difficulties.  The file information also included reports from the treating physicians dated June 5, 2014 and August 25, 2014.

By letter dated September 9, 2014, the worker was advised by Compensation Services that her claim was not acceptable as a relationship could not be established between her work duties or an accident at work and her reported bilateral wrist, right ring finger and right forearm difficulties.  It was noted that the worker had been in her position since June 2013, and there had been no substantial changes in her work load or job duties to coincide with the development of her symptoms.

On February 3, 2015, a union representative submitted to Review Office that the worker's claim for compensation ought to be accepted as there was a clear nexus between the worker's job duties and the confirmed diagnoses related to her right arm, elbow, hand and ring finger.  The representative noted:

• The worker started a new position in the housekeeping department as of June 2013.
• The symptoms in her right wrist, arm and finger started to develop in November 2013.
• The worker did not work for at least one year prior to starting the new duties in the housekeeping department.
• The worker had been diagnosed with right ulnar and median nerve compression neuropathy (cubital tunnel syndrome) and trigger finger of the right ring finger.
• Cubital tunnel syndrome was often caused by prolonged and excessive elbow flexion.  The job tasks performed by the worker involved prolonged and excessive elbow flexion.
• Trigger finger was often caused by forceful overuse/strain of the hand.  The job tasks the worker performed included job duties where this could occur.

In a submission to Review Office dated March 20, 2015, the employer's representative stated that they agreed with the September 9, 2014 decision that there was insufficient evidence that the worker's conditions were work-related. 

On April 10, 2015, Review Office confirmed that the claim for compensation was not acceptable.  Review Office acknowledged that the worker used her hands extensively throughout the day and that some duties involved forceful movements.  Her position, however, did not involve repetitive forceful grasping or repetitive awkward positioning of the hand and wrist.  The evidence did not support that the worker leaned on her right elbow or that she kept her elbow bent for sustained periods of time.  Review Office concluded that the worker's duties were

sufficiently varied, and that it was unable to account for the onset of the worker's right arm, hand and ring finger difficulties in 2013 in relation to her job duties.   On September 12, 2016, the worker's union representative appealed Review Office's decision to the Appeal Commission, and an oral hearing was arranged.

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.

Subsection 4(1) of the Act provides that 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.

"Accident" is defined in subsection 1(1) of the Act as follows:

"accident" means 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.

WCB Policy 44.10.20.10, Pre-existing Conditions provides that a claim can also be accepted if there is a work-related aggravation or enhancement of a pre-existing condition.

Worker's Position

The worker was represented by a union representative, who provided a written submission in advance of the hearing and made a presentation to the panel. A second union representative also attended the hearing.

The worker's position was that her work duties as a housekeeper involved the risk factors for the development of trigger finger, carpal tunnel syndrome and ulnar neuropathy, and were, on a balance of probabilities, responsible for the repetitive injuries which she sustained to her right wrist, ring finger and forearm.

It was submitted that the worker had prior right arm difficulties, which were compensable under a claim from 2008, and left her weaker and susceptible to injury. Her pre-existing compensable epicondylitis resulted in reduced strength, forcing surrounding structures in her right arm to do more. She had also been off work and minimally active for several months prior to starting back to work in June 2013, which had left her in a deconditioned state.

When the worker returned to work, it was to a full-time position which was more physically demanding and intense, and involved less variation in assigned tasks than what she had been doing in her previous position. It was submitted that her return to work in 2013, as a housekeeper, involved a significant change in the nature and level of physical activity from what she had been accustomed to during her "decades-long career" in her previous position. The physical work more likely than not contributed to the development of the worker's finger injury, and at the least, a progression of her right wrist and arm conditions. The worker continued to work in the housekeeping position for a number of months, with symptoms, which probably aggravated her condition.

It was submitted that all of the above factors could reasonably explain the onset and progression of the worker's injury, and supported the acceptability of her claim.

Employer's Position

The employer was represented by an advocate, who provided a written submission in advance of the hearing and made a presentation to the panel. The employer's position was that the worker's difficulties did not arise out of and in the course of her employment, and the claim is therefore not acceptable.

The employer did not dispute the description of the worker's job duties or that she had a busy and demanding position. It was submitted, however, that there was no cause and effect relationship between the worker's various right arm and bilateral carpal tunnel syndrome conditions, and the nature of her employment activities. The job analysis on file showed that minimal force was required to perform the worker's duties. The job did not involve the type of sustained, repetitive, forceful and awkward hand and elbow movements which might be associated with the worker's various ailments. The worker did not sustain any particular motion or activity for extended periods of time.

The advocate referred to medical articles and information regarding carpal tunnel syndrome, cubital tunnel syndrome and trigger finger which she had submitted in advance of the hearing. The advocate pointed to the risk factors associated with the development of those conditions, and noted that there were non-occupational factors associated with the development of each of them. It was submitted that the worker had many of the major non-occupational risk factors associated with her diagnoses. The diagnosis of carpal tunnel syndrome as being bilateral also pointed to a non-work-related origin.

It was further submitted that the medical reports on file did not draw a link between the worker's work activities and the diagnoses. The worker appeared to be relying on a temporal link between the onset of her symptoms and her work activities to say that her diagnoses were caused by her work activities. It was submitted, however, that just because one event follows another, it does not mean that the first event caused the second. In the employer's view, a temporal link is not sufficient in establishing a causal relationship, particularly in this case where there were accepted non-occupational risk factors for the development of the worker's conditions.

The advocate stressed that while the worker's representative had referred to the worker's prior 2008 claim, that was a separate and distinct claim for lateral epicondylitis. The issues on this appeal did not deal with the elbow, and there was no evidence that the worker's prior difficulties left her in a weakened condition.

Analysis

The issue before the panel is whether or not the claim is acceptable. For the worker's appeal to succeed, the panel must find that the worker's right forearm, bilateral wrist and/or right finger difficulties were causally related to the performance of her job duties. The panel was unable to make that finding, for the reasons that follow.

At the hearing, the worker responded to questions from her representative and the panel regarding her job duties in her housekeeping and previous positions, her various conditions and the onset and progression of her symptoms.

The worker stated that her right ring trigger finger was her main issue and concern. The union representative confirmed that the trigger finger was the primary disabler, which subsequently caused her to be off work and required surgery, and that they were focusing on that in particular. They remained of the view, however, that the carpal tunnel and cubital tunnel syndromes were also work-related and should be accepted.

With respect to her trigger finger, the worker stated that in the beginning, her right ring finger just started to click every now and then. She thought it was around November 2013 that she first noticed this clicking. While noting that the trigger finger progressed and she tried to work through it, without much success, she was otherwise generally unable to clearly describe or explain the onset and progression of that condition.

In response to a question as to the basis for her understanding that her trigger finger was a work-related injury, the worker said:

I just knew I never had it before, and I didn't have it until after a few months of going back to work, so in my mind, what else could it have been.

The worker underwent surgery on September 30, 2014. The operative report lists three procedures which were performed to address three separate diagnoses: right ring finger release, right open cubital tunnel release and right open carpal tunnel release. The worker's evidence was that the trigger finger was the primary issue and reason for the surgery, but the surgeon told her that since they were doing that surgery, they might as well get everything done at once, and they decided to do all three procedures at the same time.

The panel accepts that there was a link in terms of timing between the onset of the worker's right ring trigger finger and her return to work in June 2013. The panel finds, however, that the temporal proximity between the onset of the worker's symptoms and her return to work is not sufficient to establish a causal relationship between her trigger finger condition, the other two conditions, and the performance of her work duties.

The panel carefully considered all of the evidence regard the worker's job duties, as documented on file and as described by the worker at the hearing, and finds that there is insufficient medical or other evidence to establish a causal link between the worker's symptoms and her job duties.

The panel accepts that the worker used her hands extensively throughout the day, but is unable to characterize her duties or position as involving repetitive forceful gripping or repetitive awkward positioning of the hand and wrist. The panel finds that the worker performed a variety of job duties, and did not perform any particular duties for any extended period of time. While the worker noted that certain duties, in particular mopping and wringing out mops and rags, caused her pain, the panel is unable to find that those or any of her other work duties or the manner in which she performed her duties would have been causative of her trigger finger, cubital tunnel and carpal tunnel conditions.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's right forearm, bilateral wrist and right finger difficulties were not related to the performance of her job duties, either causatively or as an aggravation or enhancement of a pre-existing condition. The claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 31st day of March, 2017