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

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

In early February 2016, the worker filed a Worker Injury Report with the WCB for right thumb difficulties with an accident date of December 1, 2015 (reported to the employer on January 22, 2016). The worker stated:

I was working on wrapping line and my thumb started hurting but I was able to continue working since pain was not too bad. After Christmas shut-down I started on scratching/glaze line but my thumb was hurting worse and eventually was not able to move it at all.

The Employer's Accident Report dated January 27, 2016 stated:

On Friday, Jan. 22, 2016 employee approached lead hand stating that her R thumb was sore. Upon further investigation employee states that her thumb had been bothering her since early Dec. 2015 but she thought that it would just go away as we were going into a 2 week shut down. She said that when she returned from shut down, her thumb still hadn't gotten any better but she was then placed on the glaze line to which she was not grabbing with hand. She had thought that it would be ok, but stated that he (sic) thumb was still causing her difficulties. When asked what she thought may have caused the difficulties, she stated that she had been placed on the wrapping line from Sept. - Dec 2015 and felt that it may have been caused by that…

On March 2, 2016, the worker provided the WCB with additional information regarding the nature of her job duties and the onset of her right thumb difficulties. In brief, the worker attributed her right thumb difficulties to her job duties on the wrapping line which involved lifting heavy molding and pressing cardboard around the molding using her right thumb. The worker advised that her left thumb also hurt but her right thumb was more painful. The worker said the pain in her right thumb did not subside during the plant shut down that occurred over Christmas.

The worker's claim for compensation was accepted by the WCB based on the diagnosis of bilateral thumb tendonitis. On March 15, 2016, the worker advised the WCB through her daughter that she was going away on vacation for one month.

On April 22, 2016, the worker advised the WCB that she found no improvement in her thumb symptoms during her holidays and that she could not button her shirt or open her water bottle.

Medical reports were submitted from the worker's treating physiotherapist and her attending physician.

On April 23, 2016, a WCB medical advisor reviewed the claim file and stated:

With the information on file at this time, a dx [diagnosis] cannot be confirmed.

The worker submitted the claim for right thumb pain which she related to her job duties. She saw her doctor who noted pain, tenderness, soreness, and swelling and provided a dx of tendonitis. Despite not performing the same duties, the pain has not improved and in fact is now in the left thumb as well.

There is now mention of pain from the MP joint with joint stiffness. The physio has indicated triggering.

The overall presentation of bilateral thumb pain and stiffness with locking in a 53 year old female is concerning for OA [osteoarthritis], but this cannot be confirmed without imaging.

It's not likely that this is an overuse tendonitis because that would get better with avoidance of provocative activities and should not "spread" to the other side…

There is some evidence that OA of the thumb CMC joint is associated with prolonged (> 10 years) exposure to these factors on a regular basis throughout a typical work day:

• Force/repetition or force/posture 

• Vibration 

• Highly repetitive work 

• Awkward postures

Adjudication should review the worker's job duties to see if they meet these criteria, remembering the exposure should be consistent over at least a 10 year period. Consideration also needs to be given to the bilateral nature of the worker's condition. Work related OA tends to be in the dominant hand only since that would typically be the hand involved with the known risk factors. Bilateral disease tends to support non-occupational etiology.

Thumb OA can be quite painful and many cannot tolerate activities that involve the activities listed above. It would be an adjudicative decision as to whether avoidance of such activities would be considered compensable restrictions.

On April 26, 2016, Compensation Services determined that the worker was not entitled to medical aid and wage loss benefits as of April 27, 2016 as a relationship could not be established between the worker's ongoing difficulties and an accident arising out of and in the course of her employment.

On April 28, 2016, the worker submitted an appeal to Review Office which included medical reports dated January 29 and May 9, 2016. On May 16, 2016, Review Office found it premature to consider the worker's appeal and the case was returned to Compensation Services to further investigate the claim.

On June 17, 2016, the WCB medical advisor reviewed the new medical reports and stated, in part:

Since the claim had been reviewed previously, the worker has seen a physical medicine specialist and had NCS.

He documented symptoms and clinical findings of trigger thumbs (right > left) to account for the thumb symptoms. Triggering is a very common condition and is most often idiopathic…It is unclear if there is a cause/effect relationship between occupational activities, but there may be an association with prolonged or repetitive firm grasp, particularly when there is constant mechanical pressure over the thumb flexors (in the palm of the hand at the base of the thumb).

The specialist indicated that the NCS were consistent with mild bilateral CTS, but there weren't many clinical findings to confirm.

On June 24, 2016, Compensation Services wrote the worker to advise that following a review of the new information, the WCB was not able to establish a relationship between her job duties on the wrapping line and the diagnosis of bilateral trigger thumb and bilateral carpal tunnel syndrome.

The worker provided the WCB with new medical information dated July 4, 2016, for consideration. On July 19, 2016, Compensation Services confirmed to the worker that following a review of that information, the WCB was not able to accept responsibility for her ongoing difficulties.

On August 2, 2016, the employer's representative wrote to Review Office indicating that they were appealing the acceptance of the claim as they felt the worker's "injury" or symptoms related to the right and left thumbs were not arising out of and in the course of her employment.

On August 30, 2016, the Worker Advisor Office responded to the employer's submission dated August 2, 2016 and also advised that they were appealing the decision that the worker was not entitled to full benefits beyond April 26, 2016.

On September 30, 2016, Review Office referred to file evidence to support its findings that there was no causal connection between the worker's development of bilateral thumb issues and any hazard of her employment. It was not established that the worker's bilateral thumb issues were arising out of and in the course of employment. Review Office concluded that the worker's claim was not acceptable. On December 28, 2016, the worker advisor appealed Review Office's decision to the Appeal Commission and a 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 44.05, Arising Out of and in the Course of Employment, provides 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 provided two written submissions in advance of the hearing and made a presentation to the panel. The worker was accompanied by two family members at the hearing, and was provided with the assistance of an interpreter. The worker responded to questions from the worker advisor and the panel with the assistance of the interpreter.

The worker's position was that her claim is acceptable for work-related injuries, being bilateral thumb extensor tendinitis or trigger finger, with right worse then left.

The worker advisor submitted that the information on file supported the initial acceptance of the claim. The worker reported her injury as work-related because the onset of her thumb pain was while she was at work performing her wrapping duties. When her symptoms were not resolving, she reported her injury to the doctor, who confirmed a diagnosis as tensor tendinitis related to the report of repetitive work. She then reported her injury to the employer.

The worker advisor referred to website information on trigger finger which she had provided previously and was on file, and which associated tendon disorders such as tenosynovitis with high risk occupations and activities, including assembly line work or manufacturing that have localized mechanical stress or repetition. She submitted that the worker's employment fell within those descriptions, involving activities of repetitive mechanical stress with grasping and prolonged activities.

The worker advisor noted that historically the WCB looks for a change in duties on which to support an injury, and submitted that there were accepted occupational risk factors which contributed to the worker's thumb difficulties, including a change in her duties. The change in duties from her previous position included lifting duties with her thumbs, which involved repetitive grasping with both thumbs, and applying pressure with her right thumb while performing the wrapping duties.

The worker advisor noted that a video which the employer provided supported that bilateral thumb pressure was required with each piece of cardboard, and the right thumb was primarily used to press down repeatedly on each while performing the wrapping duties. It was submitted that these actions placed pressure on both thumbs. It was submitted that the duties in the wrapping line were more strenuous on the thumbs than what the worker was previously performing. The worker stated that both the glazing and wrapping line duties required a lot of physical strength and pressure was on both hands, but she had never felt such a pain as she had experienced on the wrapping line.

It was submitted that the worker's return to the scratching and glazing line in January also contributed to an increase in her already painful bilateral thumb problems. The worker described how she would have to rub the molding to change the colour of the glaze, indicating that she would have to apply pressure in order to remove part of it. She said that when she was transferred back to the glazing line, she could not work with her right hand so she compensated with her left hand, which then started to hurt her more. It was submitted that the worker's performance of her duties with injured thumbs further aggravated her injuries.

The worker advisor submitted that the performance of the worker's job duties had the occupational risk factors of firm grasp with the thumbs as identified by the WCB medical advisor. With respect to the factors associated with repetitive firm grasping, there was confirmed pressure over the thumb flexors with grasping and rolling moldings and lifting, and these duties could not be performed without using the thumbs.

In conclusion, the worker advisor submitted that with the change in duties, the reported onset of pain and difficulties originally while at work, while performing the wrapping duties which involved grasping with both thumbs, lifting, pressing down and wrapping, the worker's claim is acceptable under subsection 1(1) of the Act.

Employer's Position

The employer was represented by an advocate and by a Senior Disability Management Specialist.

The employer's position was that the evidence does not support a causal connection between her bilateral thumb issues and any hazard of her employment, and the claim is not acceptable.

The advocate acknowledged that there was some evidence of symptoms and pathology, but submitted that they could not accept that this was arising out of and in the course of the employment.

It was submitted that the evidence showed that the worker's job tasks involved little resistance, with no continuous pressure being applied, repetitive work but multiple variation in tasks, the ability to control the number of units done in a period of time, and a lot of variation in movements. The duties did not require a prolonged or repetitive firm grasp, and were not characterized as strenuous. The worker had the opportunity to move up to ten meters while moving product; she was not in the same position continuously, and had a lot of opportunity to move and to stretch.

The advocate noted that there were two different jobs which the worker performed, namely wrapping and glazing. The worker confirmed that the job of glazing and scraping had not given her problems before and she attributed her thumb problems to the wrapping job.

The advocate pointed to the opinions of the WCB medical advisor, who indicated that this was not likely overuse tendonitis because that would get better with avoidance of provocative activities and should not spread to the other side. The advocate noted that the WCB medical advisor also referred to certain factors which might be associated with triggering, and indicated that the job tasks as described did not reflect these factors.

In summary, it was submitted that the problems which the worker was having were not related to her job tasks, and the claim is not acceptable.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to succeed, the panel must find that the worker's bilateral thumb difficulties were causally related to the performance of her job duties. The panel is unable to make that finding, for the reasons that follow.

The panel accepts the WCB medical advisor's comment in her April 23, 2016 report that it was "not likely that this is an overuse tendonitis because that would get better with avoidance of provocative activities and should not 'spread' to the other side…" The panel notes that the evidence shows that although the worker was off work for holidays for one month between March and April 2016, and remained off work for another month after that, there was no improvement in her symptoms.

On her June 17, 2016 report, the WCB medical advisor noted that a physical medicine specialist had documented symptoms and clinical findings of trigger thumbs (right > left) to account for the worker's thumb symptoms. The WCB medical advisor went on to outline the causative factors for triggering. The medical advisor stated that triggering is a very common condition and most often idiopathic. She further stated that "It is unclear if there is a cause/effect relationship between occupational activities, but there may be an association with prolonged or repetitive firm grasp, particularly when there is constant mechanical pressure over the thumb flexors (in the palm of the hand at the base of the thumb)."

The panel accepts the WCB medical consultant's description of the causative factors for triggering. The panel has considered the worker's job duties to determine whether those duties involve any of these causative factors.

The worker described and demonstrated her duties in detail at the hearing. Having carefully considered and questioned the worker with respect to the description of those duties, the panel is unable to find, on a balance of probabilities, that they would have resulted in the development of bilateral trigger thumbs. Based on our review of the evidence, the panel finds that the worker's movements were not sufficiently forceful or repetitive. The worker performed a large variety of movements, and had the opportunity to change position often, including while getting and bringing product to the table for wrapping. The cardboard which the worker had to fold was creased on the fold lines, and the panel is not able to find that she had to exert significant pressure to wrap the product. With respect to the glazing duties, the panel is further satisfied that while the work was repetitive, the worker did not have to exert the type or amount of pressure which would be sufficient to result in trigger finger. The panel acknowledges the worker's evidence that she was generally not able to control the speed of her work, in that she was working on a line. Overall, however, the panel is not satisfied that the worker's job duties involved the type of repetitive firm grasping or pressure or other factors which could have been causative of trigger thumb.

The panel accepts that the worker has more symptoms on the right side because she is right-handed. The panel is unable to find, however, that the worker's performance of her job duties was the cause of her difficulties with either her right or her left thumb.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's bilateral thumb difficulties were not causally related to 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 3rd day of November, 2017