The Appeal CommissionThe Workers Compensation Act of Manitoba

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 May 23, 2017 to consider the worker's appeal.

Issue

Decision

That the claim is not acceptable.

Background

The worker filed a claim with the WCB on June 28, 2016 for an injury to his right hand, wrist and elbow with the accident date of October 1, 2015. The worker believed that his injury was caused by his work duties as a cook, which were described as follows:

I chop and dice meat as well as cook. Sometimes I slice vegetables. I start at 7:30 am. I put the rice in the steamer, portion everything that I put on the line. Then I chop the chicken, beef and pork and cook it. After I have the line filled then I am cooking my beans. The rest of the time I am preparing and cooking whatever they run out of.

The worker advised the WCB that he first noticed his symptoms in October 2015 while at work. He stated that:

At first half my hand, pinky and rings fingers start to go numb. Now I feel it from my elbow down to my hand. It became difficult to hold the knife. It is difficult to open things. Every day I feel pain. At times the pain wakes me up at night. I have been wearing a brace at night for the last 2-3 months. I have been booked for surgery.

The worker said he told his employer that he did not know what happened to his hands but they were going numb. He had been at his current job for three years.

The Employer's Accident Report dated July 13, 2016 confirmed the job duties as described by the worker and stated that the worker did not report his right hand, wrist and elbow injury as a workplace injury.

The claim file contains medical reports which show that the worker was diagnosed with right-sided cubital tunnel syndrome/ulnar neuropathy on May 2, 2016 and that surgery was recommended.

On August 5, 2016, a WCB medical advisor stated:

…The specific causes of the development of ulnar neuropathy have not been well determined. The presence of diabetes, prior elbow injuries (ie fractures) and increasing age are recognized contributors (all are noted to be present in [worker's] case). In most cases, symptoms improve with conservative treatment (ie avoidance of sustained pressure on the flexed elbow, splinting) however with more severe or persistent cases, surgical treatment may be considered.

…Based on reported symptoms and electrophysiologic testing, the diagnosis remains right cubital tunnel syndrome.

…There is very limited evidence to establish a relationship between workplace activities and the development of cubital tunnel syndrome. While there is some evidence of an effect from a combination of risk factors (ie force and repetition, force and posture) overall "no causal relationship between repetitive elbow motions and ulnar neuropathy at the elbow in industrial workers has been demonstrated in the medical literature"…The duties performed by [worker] appear to be varied, without an element of pressure on the elbow/ulnar groove.

On August 12, 2016, the worker was advised by Compensation Services that his claim for compensation was not acceptable as they were unable to establish a relationship between his job duties and the diagnosis of cubital tunnel syndrome.

On November 24, 2016, a worker advisor, acting on the worker's behalf, appealed the decision to deny responsibility for the claim. The worker advisor noted that the worker is right-handed, has two jobs as a cook and works 16-hour shifts. The worker's job duties of lifting, cutting, chopping, dicing and turning meat and vegetables were repetitive and would require a degree of force while the right elbow was in a bent position for sustained periods of time. The worker advisor referred to the WCB medical advisor's comments that a combination of risk factors including force, repetition and force with posture have been identified as causative factors. Included with the submission were two web articles that pointed to a bent elbow position as being a main risk factor for developing cubital tunnel syndrome. The worker advisor concluded that the worker's job duties were the cause of his right elbow injury and that the claim met the requirements of The Workers Compensation Act (the "Act") and should be accepted.

On January 19, 2017, Review Office determined that the worker's claim was not acceptable. Review Office found that the risk factors associated with occupationally related cubital tunnel syndrome were not present in the worker's job and his right arm condition was not "causally connected to the employment." Review Office concluded that without a causal connection, the worker's cubital tunnel was not considered "arising out of employment." On January 23, 2017, the worker advisor 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 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 44.05, Arising Out of and in the Course of Employment, provides general information on the interpretation of the phrase arising out of and in the course of employment, and states, in part:

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.

Worker's Position

The worker was assisted by a worker advisor, who made a presentation on his behalf. The worker's position was that his work duties as a cook are associated with the onset of his right arm condition, and his claim is therefore acceptable.

In response to questions from the worker advisor and the panel, the worker described his job duties, the mechanics of those duties and his work history.

The worker advisor noted that the worker's job activities involve frequently chopping vegetables and meat, lifting heavy boxes and pots, and turning meat. It was submitted that the mechanics of frequently performing these activities contributed to the onset of the worker's right elbow condition. There were findings of right carpal tunnel syndrome and a remote fracture of the right elbow which, when combined with the mechanics of his job duties, could also have predisposed the worker to the onset of cubital tunnel syndrome. The worker advisor provided a further article in support of her position that these findings can lead to the onset of cubital tunnel syndrome. In conclusion, it was submitted that the information presented showed a causal connection between the worker's right elbow condition and his workplace duties.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of his employment. In other words, the panel must find that the worker's right-side cubital tunnel syndrome was related to the performance of his work duties. Based on the evidence on file and at the hearing, and on a balance of probabilities, the panel is unable to make that finding.

In response to questions from the worker advisor and the panel, the worker described the duties he performed for the employer. While he was working as a cook at two different jobs, he said that he chopped and prepped food in his job with this employer, and this was where he noticed his symptoms.

The worker described his posture when cutting and chopping meat and vegetables. He would have his hands extended in front, and his elbows would be bent at basically less than a 45° angle as he went through the chopping motion. He is right-handed and would hold the knife in his right hand. The tip of the knife would remain on the chopping surface and he would raise and lower the back of the knife. His work station was lower than waist height, and his hand would be lower than his elbow. The worker described how he would be chopping very fast, but would not have to exert much force or pressure.

The cutting and chopping motion, as demonstrated by the worker, appeared to involve the wrist and the arm more than the elbow. The worker advisor did not disagree with this, but added that the elbow was nevertheless still moving. She also acknowledged that the worker's elbow would not necessarily be flexed in a way that would pinch on the nerve.

The evidence shows that the worker would also be doing other tasks, including cooking the meat, rice and other foods. The worker described those duties and what they involved. Based on the worker's description of those tasks, the panel is unable to find that those job duties were consistent with the development of cubital tunnel syndrome.

The worker was generally unable to identify job duties which involved pressure or compression of the ulnar nerve or extreme flexion of the elbow. The only duty he identified which might put pressure on his elbow was when he would be carrying things, such as when he would be putting a pot on the stove. He acknowledged that he would not be leaning on his elbow at work.

The worker advisor had noted that the worker had also been diagnosed with carpal tunnel syndrome and his doctor had indicated that he had a remote fracture of the right elbow which had caused some mild flexion contracture. The worker advisor referred to the article she had filed which indicated that carpal tunnel syndrome and a fracture of the elbow can cause or predispose people to the onset of cubital tunnel. The worker had stated that none of his doctors had talked to him about the cause of his cubital tunnel syndrome, and the advisor acknowledged that she did not have any more information in this regard. In the circumstances, the panel is unable to accord any weight to this submission.

The panel places weight on and agrees with the opinion of the WCB medical advisor, that the duties performed by the worker "appear to be varied, without an element of pressure on the elbow/ulnar groove."

After careful consideration of the worker's job duties, the panel finds that they were not consistent with the known etiologies of the diagnosed cubital tunnel condition.

Based on the foregoing, the panel finds that the worker's right-side cubital tunnel syndrome was not causally related to the performance of his job duties, and the claim is not acceptable.

The worker's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 28th day of June, 2017