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 was not acceptable. A hearing was held on January 11, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

The worker filed a claim with the WCB for an injury to her left thumb, which she attributed to her work duties during a specific shift on a production line at the employer's processing plant. The worker reported that on September 14, 2016, the regular machine operator on that line was away, and there was a replacement operator. The replacement operator was not as good as the regular operator, so there were a lot of holes in the wrapping. The worker was required to inspect every package. This meant flipping the trays up using her left hand and thumb, to check for holes in the wrapping. The worker advised she did this for several hours on September 14, and again on September 15, but for a shorter period of time.

On Sunday, September 18, 2016, the worker went to a hospital emergency room where the doctor noted that she had no bruising/swelling, tenderness at the base of her left thumb and the radial aspect of her wrist, reduced range of motion, and pain with abduction and extension of her left thumb. The doctor diagnosed her with repetitive strain/tendonitis left thumb.

The worker met with her employer on September 19, 2016 and reported the September 14, 2016 injury. The employer offered the worker one-handed duties but the worker declined. The worker indicated that her symptoms were such that she was having difficulties performing basic tasks, including getting dressed.

A physiotherapist assessed the worker on September 20, 2016, and diagnosed her with tendinosis of the abductor pollicus longus and extensor pollicus brevis tendons and De Quervain's (tenosynovitis). The physiotherapist noted moderate to marked swelling, and provided a note for her employer stating, in part, that "[the worker] should take the rest of the week off…"

On October 12, 2016, Compensation Services advised that the worker's claim and associated wage loss benefits claim were acceptable. On October 13, 2016, the employer requested that Review Office reconsider the worker's entitlement to wage loss benefits. On November 17, 2016, the employer provided a submission in support of their request for reconsideration. On February 17, 2017, Review Office advised that the scope of their review was being expanded to include whether or not the claim was acceptable.

By decision dated March 7, 2017, Review Office determined that the claim was not acceptable and there was an overpayment of benefits. In making these determinations, Review Office stated, in part:

The worker's doctor and physiotherapist have diagnosed a repetitive strain injury/tendinosis and De Quervain's tenosynovitis. Occupational factors most commonly associated with repetitive strain injuries (including tendinosis/itis) include a combination of forceful and repetitive hand motions, awkward positioning of the hand/wrist, mechanical stresses and/or vibration. It is generally conceded that the greatest frequency of occupational related repetitive strain injuries are found where job duties involve high force and high repetition, and movements of the hand/wrist such as twisting, gripping, pulling, pinch pressure and wrist flexion/extension. There must be sufficient exposure to similar physical demands in order to accept a claim of this nature.

Review Office acknowledged that there was a change in the worker's duties on September 14, 2016, but found that the change lacked the force and time of exposure to result in a repetitive strain injury. Review Office also noted that the absence of reported symptoms close in time to that date, and the progression of the worker's injury which occurred later than would be expected, did not substantiate that an injury happened on or around September 14, 2016.

On June 14, 2017, a worker advisor appealed Review Office's decision to the Appeal Commission, and an oral hearing was arranged.

Reasons

Applicable Legislation

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.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and provide that the worker must have suffered an injury by accident that arose out of and in the course of employment. Where such an injury has been established, the worker is entitled to the benefits provided under the Act.

Worker's Position

The worker was assisted by a worker advisor who provided a written submission in advance of the hearing and made a presentation to the panel on the worker's behalf. The worker responded to questions from the worker advisor and the panel.

The worker's position was that the evidence supports that her injury of De Quervain's tenosynovitis was connected to the actions involved in her employment duties, and her claim is acceptable.

The worker advisor noted that De Quervain's tenosynovitis is associated with repetitive or excessive movements, such as hand twisting and forceful gripping. It was submitted that in the performance of the worker's job duties on September 14 and 15, 2016, the causes for this kind of injury were in place, with the duties involving repetitive, excessive hand/wrist twisting, and forceful grip being applied to each tray of product while it moved on a conveyor belt. The actions and weight of the product would place sufficient stress on the thumb and wrist areas to have caused the worker's strain injuries.

Using a sample tray of frozen product which she had brought with her to the hearing, the worker demonstrated how she would use her left thumb and index finger to pinch grip the end of the tray of product and flip it over to check the bottom of the product for holes. The worker indicated that she would have to flip the tray of product into the air off the conveyor belt in order to see the full length of the bottom edge. If there was a hole in the wrapping, the worker would throw the product in a crate which was beside her on the left, and someone would take it away and rewrap it. Rewrapped product would then be put back on the conveyor belt in between the product that was already there, filling up the line and resulting in even more trays coming towards her, almost on top of each other.

It was submitted that the evidence confirmed that the wrapping machine was malfunctioning on September 14, 2016, causing holes in the plastic wrapping around the trays. The machine operator was away, and the replacement operator was also causing holes in the wrapping. The worker reported that she had to flip trays up to check for holes, and confirmed that she started to feel pain in her left thumb while doing so. She had to perform the same quality assurance duties the next day, being September 15, 2016.

The worker advisor submitted that there was no significant delay in seeking medical attention. When her symptoms did not subside, the worker sought medical attention on September 18, 2016. The medical report confirmed that she sought attention for her left thumb/wrist difficulties that were related to flipping trays at work on September 14. The medical report confirmed her report of feeling specific pain to the base of the thumb and left radial aspect of the wrist. Objective findings of noted tenderness at the base of the left thumb, wrist and radial areas, reduced range of motion and pain with abduction and extension of the left thumb were provided, and a diagnosis of repetitive strain/tendinitis of the left thumb was confirmed.

It was submitted that the physiotherapist's initial assessment dated September 20, 2016 further confirmed the reporting of the work duties of flipping trays with a left hand pinch grip that caused increased soreness as the day progressed, with swelling and an inability to move the left wrist and thumb by the weekend. The complaints and objective examination findings were confirmed by the report of swelling, with deficits in the first extensor compartment of the radial wrist and thumb, and a positive Finkelstein's test was confirmed.

In summary, it was submitted that the development of the worker's symptoms matched the repetitive nature of a strain injury which had arisen from the pinch grip and turning action of the left wrist with each tray, especially given the weight of the trays which were being turned over in a production line environment.

Employer's Position

The employer was represented by its Health Coordinator. The employer's position was that they concurred with the Review Office decision that the claim was not acceptable, and there was an overpayment of benefits.

The employer's representative acknowledged that the worker was working in the wrapping area on September 14, 2016, and that a machine had been malfunctioning, causing holes in the wrapping, which meant that workers had to check trays for holes by flipping them over. It was submitted that although the worker had to check trays more often on this particular day, this was nevertheless a task which the worker would normally have to do. It was noted that the worker worked at this position for a total of three hours that day, with breaks, lunch and rotation to other job duties in between.

The representative noted that the worker did not report that an injury occurred until September 18, 2016. She worked a full shift on September 14 and 15, 2016, with no complaints or reports of any incident. While she texted in sick with a migraine on September 16, 2016, she did not report any incident having occurred at that time. She worked a photography shoot on September 17, 2016, where she was able to use her left hand and thumb to hold the camera. She did not seek medical attention until September 18, 2016, which was after she had worked the photography shoot.

The representative referred to the occupational factors most commonly associated with repetitive strain injuries as noted in the Review Office decision, and submitted that even though the worker had to flip and check more trays than usual on September 14, 2016, that task lacked both the force and time of exposure to result in a repetitive strain injury. The representative further submitted that when flipping trays in the manner described by the worker, by using her left thumb and index finger to pinch the ends of the trays and flip them, her wrist would stay in a more neutral position, which would minimize stress on the tendons, muscles and skeletal system and reduce the risk of her developing an injury.

The representative submitted that while the worker had indicated that she could not do one-handed duties as she could not get dressed to attend work, she had in fact demonstrated her ability to dress herself when she attended at the health unit and worked on the photo shoot, and should have been able to attend work.

In summary, it was submitted that the worker did not injure her left thumb in the course of her employment with the employer on September 14 or 15, 2016, and her appeal should be dismissed.

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 her employment. The panel is able to make that finding.

Based on our review of the information on file and at the hearing, together with the submissions of the parties, the panel finds that the worker suffered an injury to her left thumb and wrist, diagnosed as left thumb tendinosis/tendinitis and De Quervain's tenosynovitis, as a result of the performance of her job duties on September 14 and 15, 2016.

In arriving at that conclusion, the panel notes that the product which the worker was dealing with on September 14 and 15, 2016 was relatively big and heavy. The sample product which the worker brought to the hearing weighed approximately 1.6 kilograms. The employer's representative agreed that this weight would be in the same range as the product which the worker was working with on September 14, 2016.

The worker demonstrated how she would grip a tray of product and flip it over to inspect it for holes. The panel carefully questioned the worker with respect to her movements and positioning as she was performing this task. The panel finds that the product had to be gripped firmly in order to be flipped upward 180° and caught with the other hand, as demonstrated by the worker, then returned to the line or thrown into the crate for rewrapping. The employer's representative acknowledged that everyone would flip the product a little differently, and that the worker's demonstration of how she flipped the product was reasonable and within the realm of what would be expected.

There was no dispute that the wrapping machine was malfunctioning on September 14, 2016. While the employer's representative indicated that the machine was repaired for September 15, the worker said that if it was, it was not fixed properly as she was still having issues with the machine on September 15. The evidence indicated that when the machine was working well, the worker would be checking one in 40 trays. With the machine malfunctioning and the replacement operator causing more holes, the worker had to check every tray. In addition, with an increasing number of holes being identified, more product had to be sent back to be rewrapped then returned to the conveyor belt which she would have to recheck. The worker estimated that she would normally have been dealing with 18 to 20 trays of product per minute, but there would have been almost double that number going through on the line on September 14, 2016, as she estimated that 60 to 70 percent of the product had to be rewrapped and returned to the line that day.

The worker also noted that it was sometimes harder to grab a package where there were holes in the packaging, since the wrapping and product could be loose or sagging and moving around more. As she would not want the product to fall out of the tray, she would hold on even tighter to the package.

The employer's representative had suggested that there would normally be a period of time on the production line where there were no trays going through and workers would be able to stand and wait for trays to begin again. The worker's evidence was that this would not have happened at all on September 14 or 15, 2016.

The panel finds that with the changes in the worker's job duties on September 14, 2016, the worker was required to apply forceful, almost continuous gripping of product over an extended period of time. The panel further finds that the force and time of exposure in these circumstances were sufficient to result in a repetitive strain injury.

The panel notes that while the employer's representative also submitted that the worker was able to dress herself and should have been able to return to work doing one-handed duties, the worker indicated that she was unable to get dressed for work as this included putting on several layers of clothing, putting her hair in a bun and a handkerchief on her head, putting on wool socks at the plant, steel-toed boots, and a smock, tying on an apron, putting on a hardhat with earmuffs, and more, and there was nobody to help her with all of this.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of her employment on September 14 and 15, 2016, and the requirements of subsections 1(1) and 4(1) of the Act have been met. The worker's claim is therefore acceptable.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 9th day of March, 2018