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 and that she was not entitled to any benefits. A hearing was held on February 15, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable; and

Whether or not the worker is entitled to benefits.

Decision

That the claim is not acceptable; and

That the worker is not entitled to benefits.

Background

The worker filed a claim with the WCB for a twinge she felt in her left elbow when she pulled a binder out of the cupboard above her desk with her left hand. The worker advised that the injury occurred on February 8, 2016. The worker stated that she reported it to the safety officer on the same day. The worker did not seek medical attention until about six (6) months later.

On August 8, 2016, the worker attended a physiotherapist for an initial assessment regarding left elbow complaints that she related to the mechanism of injury as described on the worker's incident report. At that time, the diagnosis was lateral epicondylitis.

On August 18, 2016, a WCB adjudicator documented information to the file regarding the worker's daily job duties, the incident that occurred on February 8, details of her left elbow symptoms and the reasons why she did not seek immediate medical attention after the accident. In that regard, the file indicates that she did not seek medical treatment as she thought that the pain would go away with the use of a transcutaneous electrical nerve stimulation (“TENS”) machine, a tensor bandage and at home stretching.

On August 26, 2016, the worker was advised that the WCB was unable to accept responsibility for her current left elbow difficulties as a relationship could not be established between her diagnosed condition of epicondylitis and the February 8, 2016 workplace accident. The adjudicator noted that the worker reported the injury right away; however, she did not seek treatment until six months after the accident. On September 20, 2016, the worker appealed the decision to Review Office.

In a decision dated October 28, 2016, Review Office confirmed that the claim was not acceptable and there was no entitlement to benefits. Review Office stated:

"The evidence does not support the worker was injured when she lifted the binder. The evidence supports the worker may have experienced symptoms in relation to lateral epicondylitis, however, lifting a binder as a one-time occurrence is not in keeping with the risk factors and the evidence supports it did not cause the condition. Experiencing symptoms as part of a condition does not provide a causal association with work. Without a causal association, it cannot be said that the injury is "arising out of, and in the course, employment."

On November 22, 2016, the worker 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 Board of Directors.

This appeal deals with claims acceptance. Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted, and state 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.

Under subsection 1(1) of the Act, “accident” means a chance event occasioned by a physical or natural cause; and includes,

(a) a willful 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

(iii) occupational disease,

and as a result of which a worker is injured.

Subsection 4(1) of the Act provides for payment of compensation in respect of personal injury by an accident arising “out of and in the course of” a worker’s employment.

WCB Board policy 44.05, Arising Out of and in the Course of Employment, provides further explanation as to what this means:

Generally, an injury or illness is said to have “arisen out of employment” if the activity giving rise to it is causally connected to the employment – that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred “in the course of employment,” an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

The Worker’s Position

The worker represented herself. She made a presentation and responded to questions from the panel.

In sum, the worker's position was that she sustained an injury to her left elbow while performing her job duties and her claim should be accepted.

The worker submitted three pages of colour photographs showing her office workstation and identifying the location of the binder which she was retrieving. As well, the worker provided a note from her physician dated November 21, 2016, which stated the worker had:

“[…] no prior RX of L lat epicondylitis until Feb 2016. Although she felt a “twinge” on pulling a binder, she failed to mention that her jobs involves repetitive pulling & reaching for heavy binder. Her injury is consistent with repetitive strain. Please reconsider your decision.”

When asked during the hearing, the worker’s evidence was that she had been at this particular work station for approximately five years. One of her tasks that she performed would be to retrieve a series of binders located on some shelves directly above her workplace. Her evidence was that she would perform this task about two to three times a day.

At the time in question, the binder which she pulled from the shelf was a three inch binder full of paper. Her evidence was that while she is not left hand dominant, she did pull this binder with her left hand. The worker’s evidence, supported by the employer, was that she reported the incident shortly after it occurred.

The Employer's Position

The employer was present and made a submission in support of the worker's appeal. The employer representative also responded to the questions from the panel.

Analysis

In this case, the worker is confirmed to be at work and working her expected duties when an incident occurred. Therefore, the panel must initially determine if the evidence supports the worker was “injured” at that time and if so, then determine if there is entitlement to benefits.

The first 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 lateral epicondylitis was causally related to her employment. The panel is unable to make that finding.

It is the panel's understanding that lateral epicondylitis generally develops from repeated, forceful forearm or wrist movements, involving grasping and elbow twisting. It may also result from overuse of the forearm muscles and repeated twisting motion is the most common. In that regard, the panel adopts the Review Office’s August 28, 2016 statement that:

Typically, lateral epicondylitis occurs following repetitive extension and flexion or rotation forces on the forearm, and is associated with tasks requiring a strong grip. Often referred to as “tennis elbow” as it can arise when excessive amounts of racquet sport practice is involved, including the motions of swinging a racquet and striking a ball when improper form is used. Occupationally speaking, as an example, plumbers or production workers in a manufacturing plant are typically effected (sic). An acute blow to the outside of the elbow can also induce symptoms.

Lateral epicondylitis is also known to occur insidiously when there is a lack of known occupational or past-time/sport related factors. The other risk factors for developing lateral epicondylitis include: gender (female), age 30 -50, smoking and other systemic diseases and a history or soft tissue related injuries or illnesses.

While the worker described her duties in detail at the hearing, the panel paid particular attention to the duties which the worker had identified as being the cause of the injury. The panel notes that while some of those tasks could potentially cause her difficulties, we are unable to conclude that there was sufficient force, repetition or frequency to find that this particular task (or the worker's duties in general) did cause her lateral epicondylitis condition.

Indeed, her evidence at the hearing was that when she pulled the binder, it came out with her arm and elbow in a neutral position and there was no evidence that pulling the binder caused any excessive force on her forearm. Overall, the evidence provided did not establish a causal link between the worker’s job duties and the alleged workplace injury.

Having carefully considered the information on file and the evidence at the hearing, the panel has concluded on a balance of probabilities, the worker's job duties would not have resulted in the development of a lateral epicondylitis condition in her left arm.

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. As a consequence of this decision, there is no basis for the worker to receive any benefits under the Act, which is the second issue under appeal. The worker's appeal is dismissed.

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

C. Monnin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of April, 2017