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 June 7, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker filed a claim with the WCB for an injury to her right pointer finger that extended into her knuckles and wrist, which she related to the work duties she performed on May 12, 2016. The employer's accident report confirmed that the worker reported pain to her right hand which started on May 12, 2016 after boning product at work. The employer also noted that the worker had a previous WCB claim for a right hand injury from 2008, and that her physician had indicated that this was a recurrence/aggravation of a pre-existing condition.

When speaking to a WCB adjudicator on June 2, 2016, the worker indicated that her area of injury was along the second and third fingers. The worker noted that she had been with the accident employer for 16 years. Since February 2016, she and four other workers from her production line had been sent to a different line. On the new line, they used a shorter knife and different hand movements as compared to the previous line. The worker noted that she used the index finger to support and guide the handle of the knife while cutting. She felt the constant position of the index finger caused her condition. The worker noted that she had had no rotations since she started the job in February 2016.

In a medical report dated May 25, 2016, the treating physician diagnosed the worker with osteoarthritis and possible gout.

A May 30, 2016 x-ray report related to the right hand was read as showing:

There is mild narrowing of all the DIP joints of the fingers and the IP joint of the thumb consistent with mild osteoarthritis. No erosions are seen. No other abnormality is seen.

In a decision dated June 28, 2016, the worker was advised that her claim for compensation was not accepted as the WCB was unable to find a causal connection between her diagnosis of osteoarthritis and the change in her job duties. The adjudicator noted that the worker was diagnosed with osteoarthritis and the presence of gout was noted when she sought medical treatment for her right hand complaints. The physician did not make any reference to a workplace incident or her job duties. The adjudicator noted that osteoarthritis was a known medical condition that was primarily related to aging. After considering the nature of her job duties and the fact that she transferred to another department three months before the onset of her symptoms, the WCB was not able to find that the worker sustained an injury as a result of an accident arising out of and in the course of her employment.

On August 24, 2016, the worker's advocate appealed the decision dated June 28, 2016. The advocate argued that the worker "had worked for a number of years on the [previous] line with no work place injury. In a short period from February to May 2016 due to the change in her knife and the way she had to use her right hand and fingers to put additional pressure on the cut caused her to suffer this workplace injury. The change in job caused the injury which is connected to her employment. [Worker] did not incur any loss of wages but continued working in light duties for 2 weeks and then for another 2 weeks alternative work. [Worker] also stated that her supervisor did not fully complete the alternative work assessment required prior to returning to the [new] line. She has a concern that she may have returned before she should have."

On October 14, 2016, the employer's advocate wrote to Review Office and stated, in part, "Based upon the lack of a workplace mechanism of injury, either traumatic or cumulative, as well as a diagnosis of osteoarthritis and possible gout, we support the decision that [worker's] claim is not acceptable."

On November 2, 2016, Review Office confirmed that the claim was not acceptable. Review Office noted that the worker completed her duties on the day of accident without issues. The worker reported that she had no previous symptoms and once home, a few hours after leaving work, the symptoms in her right hand began.

Review Office concluded that the sudden onset of symptoms while at home were in keeping with the worker's systemic diseases of osteoarthritis and a suspicion of gout and were not in keeping with a change in duties three months previously. As those diseases were not causally related to the worker's duties, the claim for compensation was not acceptable. On November 28, 2016, the worker's advocate 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.

"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 (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states that:

When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

The following definitions are set out in the Policy:

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was assisted by a worker advocate, who made a presentation to the panel on the worker's behalf.

The worker's position was that the change in her job duties in February 2016 resulted in the injury to her right hand. The advocate stated that on the previous line, the worker had used a long knife which she held with her whole hand. On the new line, she used a short knife, her two fingers guided the knife when cutting and she had to exert pressure on the knife. In addition, as she had not been trained to perform other jobs on the new line, she could not rotate into other positions during her shift as she had done previously, and had to perform the same cutting duties for her entire shift.

The advocate submitted that the worker had worked on the previous line for many years without any workplace injury. However, in the short period of time from February to May 2016, due to the change in her knife and the way she had to use her hand and fingers to apply additional pressure when cutting, she suffered the injury. The injury was therefore connected to her employment. Her inability to rotate and change jobs on the line may also have resulted in a repetitive injury.

It was submitted that a repetitive injury is a family of painful disorders that can affect tendons, muscles, nerves and joints. It causes persistent or recurring pain, most commonly in the neck, shoulders, forearms, hands, wrists and elbows. It was further submitted that this type of injury may be caused by repetition, and also by force, rapid movement, overuse, excessive strain, and uncomfortable positions. Some of the symptoms experienced would include numbness and stiffness, tingling and burning sensations, pain and dull aches that may be stronger at night, and swelling around the affected area.

With respect to the reference to a possibility of gout, the advocate noted that there had been no diagnosis of gout in the medical reports on file. The worker's x-ray showed mild narrowing of the joints consistent with mild osteoarthritis.

The advocate submitted that the worker may have had a pre-existing condition of osteoarthritis, but the evidence nevertheless indicated, given her work history on the previous line and the fact that she did not suffer a hand injury until she was moved to the new line, that the worker suffered a repetitive injury as a result of her use of a different knife and different movement of her hand.

In conclusion, the advocate submitted that the worker's claim for her right hand and index finger difficulties should be accepted as compensable.

Employer's Position

The employer was represented by an advocate and an occupational health nurse.

The employer's position was that there was no evidence of an injury arising out of and in the course of employment and no connection between the worker's workplace activities and the diagnoses of osteoarthritis and possible gout.

The advocate noted that the worker reported pain developing in her right hand at home, two hours after her shift had ended on May 12, 2016, and while she was at home. No specific mechanism of injury was identified. The worker attributed the pain to her transfer to a different position three months earlier, where she began using a smaller knife. Between February and May 12, 2016, however, she made no complaints that she was having any difficulties with her hand or fingers, and there was no information supporting a relationship to her work duties. It was submitted that the worker still had to cut product in her new position, as she had done before, and if anything, working with a smaller blade should have been easier.

The advocate submitted that the diagnoses confirmed that the worker's difficulties were not work-related. There was no mention of a workplace injury in the May 25, 2016 medical report, nor was there any diagnosis of a hand strain or anything like that. It was clear, however, that the worker had osteoarthritis, and possibly gout. The doctor also noted the presence of Heberden nodules, which are indicative of advancing osteoarthritis.

It was submitted that osteoarthritis and gout are age-related degenerative conditions, unrelated to work activities. Symptoms of these diseases can come on suddenly, wax and wane regardless of activity, and generally progress with the passage of time. The advocate argued that this was consistent with the worker's symptoms, which flared up quickly then settled down within a few days.

The advocate stated that they did not believe that the switch to the new line, and use of a different knife after February 2016, would result in the sudden development of pain and swelling while the worker was at home on May 12. In their submission, difficulties would have been evident from the beginning and the symptoms would not have developed so suddenly and acutely three months later.

In conclusion, the advocate submitted that based on the lack of a workplace mechanism of injury, either traumatic or cumulative, as well as a diagnosis of arthritis and possibly gout, there was no connection between the appearance of the worker's difficulties and her workplace activities, and the claim was therefore not acceptable.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find that the worker's right hand difficulties were causally related to, or aggravated or enhanced by, the performance of her job duties. For the reasons that follow, the panel is unable to make that finding.

The worker's advocate confirmed in the course of the hearing that the issue on the appeal was one of aggravation, not causation, and that it was their position that the worker's osteoarthritis was aggravated by her job duties.

Medical information on file shows that the worker has osteoarthritis in her right hand. While there is also a reference to the possibility of gout, there is no diagnosis of gout on file. The worker advised at the hearing that the results of subsequent tests for gout were all negative.

The panel questioned the worker at length with respect to her previous position and the one she was transferred to, her job duties in each position, the knives she used, how she would grip and cut with those knives, and the onset of her symptoms. The worker indicated that she would be gripping the knife harder on the new line, and most of her strength would be going into the fingers, whereas on the previous line, her strength would be in the whole hand. She said that the shorter blade took more, not less, pressure due to the difference in the work being performed and the extra pressure that was required in the new position.

The worker said that on May 12, 2016, she felt the same as normal at the beginning of the day. She said she was able to do her job until the end of the day and had no trouble with the last cut. She drove home, and it was only a couple of hours later when she was at home that she felt the pain and noticed that her hand was swollen. In response to why she thought her symptoms did not appear until later, the worker said that you are working so fast at work that you don't feel the pain; that it is only after you go home, relax and start to warm up that you start feeling everything and notice you are hurt. In her view, that was what happened here.

Based on our review of all of the information before us, the panel is unable to find that the worker's right hand difficulties were aggravated or enhanced by the performance of her job duties. The evidence shows that the worker was asymptomatic while at work, and her symptoms did not start until two hours later, at home. Given her description of her duties and her gripping and use of the knife, the lack of symptoms over a three month period of time while she was performing her new duties, and the sudden onset of her symptoms two hours after her work shift had ended and while she was at home, the panel is unable to relate the worker's symptoms to her job duties.

In addition, the panel notes that although it was submitted that the worker had not suffered an injury for many years in her previous position, the worker did file two claims with the WCB in 2008 for injuries to her hands while she was working on the previous line. In particular, in a claim filed February 2008, which was denied, the worker described having symptoms which came on over the weekend. The worker stated that the symptoms started as a radiating pain that travelled down her baby and ring fingers, and that she had problems gripping and had swelling to the entire hand. Similar to this case, the worker reported that the pain started on the weekend and not at work, and that she believed that her injury was caused by repetitive work associated with cutting. In response to questions from the panel, the worker stated that to the best of her recollection, the swelling in 2008 would have been similar to what it was in 2016. The worker said she thought the symptoms would not have continued on after that, but would only have lasted for a certain period of time.

It is the panel's understanding that the sudden onset, and waxing and waning of symptoms, as occurred in 2008 and in this instance, is consistent with a condition of osteoarthritis.

The panel further notes that the May 25, 2016 report from the treating physician stated that the worker had Heberden nodules. Again, it is the panel's understanding that the presence of those nodules is indicative of progressive osteoarthritis.

Based on the foregoing, the panel finds that the worker's right hand difficulties were not causally related to, or aggravated or enhanced by, the performance of her job duties. The claim is therefore not acceptable.

The worker's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 4th day of August, 2017