The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") that her bilateral hand/arm/elbow and shoulder difficulties were not compensable and that she was not entitled to benefits after October 13, 2015. A hearing was held on December 14, 2017, and reconvened March 16, 2018, to consider the worker's appeals.

Issue

Whether or not the worker's bilateral hand/arm/elbow and shoulder difficulties are compensable;

Whether or not the worker is entitled to benefits after October 13, 2015.

Decision

That the worker's bilateral hand/arm/elbow and shoulder difficulties are not compensable;

That the worker is not entitled to benefits after October 13, 2015.

Background

The worker filed a Worker Incident Report with the WCB on October 15, 2015 for an injury to both wrists and shoulders which occurred on September 28, 2015. The worker, through her daughter, reported that she was off work prior to September 28, 2015, and returned to work that day on modified duties, where she had to pick up product of different sizes from a table and place it into a tub. She worked the whole eight hours. Her doctor had said she was supposed to work six hours, but her employer made her work eight hours. She was doing the same task all day, using her left hand only, which was difficult because she is right-handed. Her arms were really sore by the end of the day. When she went home, her hands were numb and her arms were sore, especially her left wrist and shoulder. The doctor had told her to use her left arm only because she had trigger finger in her right thumb.

On October 1, 2015, the worker saw her family doctor and was diagnosed with a left shoulder and elbow strain. The doctor recommended restrictions of pushing or lifting less than ten pounds with both hands for up to four hours per day from October 1 to October 9, 2015. At a follow-up appointment on October 9, 2015, the worker's doctor diagnosed her with "strain of the shoulders, elbows and wrists" and recommended that the worker stay off work from October 1 to October 22, 2015 as "no modified duty is offered from her company."

At a further follow-up appointment on October 22, 2015, the worker's family doctor again recommended modified duties of four hours a day, with less than ten pounds pushing, lifting and holding of items from October 23 to November 5, 2015.

On November 17, 2015, the worker attended an initial appointment with a physiotherapist. The worker reported to the physiotherapist that her left arm became sore and irritated while working with restrictions to avoid use of her right arm. She complained of an aching pain down her arm and forearm, into her wrist, sharp pain in her shoulder when elevated, intermittent numbness in the middle three fingers of her left hand and tenderness over her shoulder and elbow. The physiotherapist diagnosed the worker with left shoulder impingement, lateral epicondylitis and carpal tunnel syndrome (CTS).

The worker was seen by a neurologist on December 8, 2015. In his report dated December 9, 2015, the neurologist stated that the worker's presentation was "strongly suspicious for carpal tunnel syndrome" and nerve conduction studies demonstrated "moderately severe right and mild to moderate left focal median neuropathies at the wrists."

On January 29, 2016, a WCB medical advisor reviewed the worker's claim file and opined that the worker's modified duties from a previous WCB claim related to her right hand may have contributed to some of her left upper limb issues. The WCB medical advisor also opined that shoulder impingement may arise from repetitive activity at or above shoulder level (90°). The WCB medical advisor further noted, in relation to the worker's bilateral shoulder impingement, that "while the modified duties provided by the A/E (accident employer) appear to have involved repetitive arm motions, grasping, lifting and some cross-body reaching, which the claimant (worker) mostly performed with her L (left) arm, they do not appear to have included repetitive activity at or above 90°."

On January 29, 2016, Compensation Services advised the worker that her claim was not compensable as they could not establish a relationship between the worker's current bilateral wrist and shoulder issues and her job duties as described in her claim.

On April 1, 2016, the worker through her daughter requested that Compensation Services reconsider their decision. Additional medical information was provided and it was submitted that the worker had ongoing problems dating back to October 2014 and had injured her arms and hands doing repetitive work. On April 19, 2016, Compensation Services advised the worker that they were unable to establish that her job duties involved sufficient exposure to repetition and force as required for the development of bilateral shoulder impingement, lateral epicondylitis or bilateral CTS, and there was no change to the initial decision to disallow her claim. On June 10, 2016, Compensation Services advised that after a review of further information received, her job duties, and her rotation and work schedule, there was no change to the previous decision.

On September 29, 2016, at the request of the Worker Advisor Office, the WCB obtained additional information regarding the worker's job duties from her employer. On October 4, 2016, following review of that information, Compensation Services advised the worker that they were unable to establish sufficient exposure to both force and repetition to relate her current diagnoses to her work duties.

On November 25, 2016, the worker advisor requested that Review Office reconsider Compensation Services' decision to deny the worker's claim. On January 6, 2017, Review Office determined that the worker's claim was acceptable. Review Office found that the modified duties provided to the worker on September 28 and 29, 2015 were not appropriate and resulted in an aggravation of the worker's pre-existing conditions on her left side.

On February 8, 2017, Compensation Services noted that Review Office had accepted the worker's claim for a left sided only aggravation of pre-existing conditions due to work duties performed on September 28 and 29, 2015. Compensation Services advised that based on their further review of the worker's claim and a January 30, 2017 WCB medical opinion, they had determined that any such aggravation as a result of the workplace injury was minor in nature and would not have been expected to increase symptoms and associated limitations for more than 7 to 14 days. Time loss was therefore approved for 14 days only, from September 30, 2015 to October 13, 2015 inclusive.

On March 1, 2017, Review Office advised the worker that following the release of their January 6, 2017 decision, they had been directed to address the issue of whether her bilateral hand/elbow/shoulder difficulties were related to repetitive use and a result of workplace exposure. Review Office determined that there was no medical evidence to support that the worker's difficulties were related to repetitive use or the result of a workplace exposure. Review Office found that given the worker's short periods of work, there was not sufficient repetitiveness in her job duties to develop the type of injuries she was experiencing.

On April 28, 2017, the worker advisor requested that Review Office reconsider Compensation Services' decision to approve benefits up to October 13, 2015 only, inclusive and final. The worker advisor submitted that the worker should be entitled to further benefits not only on the basis that she had not recovered from her compensable aggravation of pre-existing conditions, but also that her job duties on September 28 and 29, 2015 caused new injuries to her left shoulder and elbow.

On May 23, 2017, Review Office determined that there was no further entitlement to medical aid or wage loss benefits. Review Office considered the worker's job duties and how long those duties were performed, the medical findings from the worker's healthcare providers and the January 30, 2017 WCB medical opinion. Review Office determined that it was reasonable for Compensation Services to extend benefits to the worker until October 13, 2015. Review Office found that there would be no requirement for workplace restrictions or medical treatment beyond October 13, 2015 in relation to the left-sided compensable injuries sustained on September 28 and 29, 2015.

On April 11, 2017, the worker advisor appealed Review Office's March 1, 2017 decision to the Appeal Commission. On June 13, 2017, the worker advisor also appealed Review Office's May 23, 2017 decision to the Appeal Commission, and an oral hearing was arranged to address both appeals.

In the course of the hearing on December 14, 2017, the appeal panel requested that arrangements be made to visit the worksite to view the job duties performed by the worker which she felt led to her injuries. Following the hearing that day, the panel also requested further information from the employer, which was provided and circulated to the interested parties.

The worksite visit took place on March 16, 2018, and the hearing reconvened later that day. Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and forwarded to the interested parties for comment. On May 15, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

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.

As the worker was employed by a federal government agency or department, her claim is adjudicated under the Government Employees Compensation Act ("GECA"), which provides that an employee who suffers personal injury by an accident arising out of and in the course of employment is entitled to compensation.

Pursuant to subsection 4(2) of GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the Act.

"Accident" is defined in GECA as including "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."

Subsection 4(2) of the Act provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act provides that the WCB may provide a worker with such medical aid as is considered necessary to cure and provide relief from an injury resulting from an accident.

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

WCB Policy 44.05.10, Definition of "Accident" under the Government Employees Compensation Act, provides that the following principles will apply when interpreting GECA:

The definition of "accident" in GECA will be given a broad interpretation. Therefore:

1. The phrases "personal injury by an accident" will be interpreted to mean "personal injury by accident."

2. The interpretation of "accident" will encompass both accidental cause and accidental result. That is, the injury itself may be considered the "accident."

3. The gradual onset of a personal injury, including an injury resulting from a gradual process or repetitive injurious motion will be considered an "accident."

WCB Policy 44.10.20.10, Pre-existing Conditions, addresses the issue of pre-existing conditions when administering benefits, and states, in part, 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.

Worker's Position

The worker was assisted by a worker advisor, who made a presentation on her behalf. The worker was accompanied at the hearing by her daughter, and responded to questions from the worker advisor and the panel with the assistance of an interpreter.

With respect to the first issue, the worker's position was that her job as a general labourer was responsible for her bilateral hand/arm/elbow and shoulder difficulties, and more specifically, that manually handling ice-covered product, which involved repetitive and forceful gripping, grasping, flexion and extension of both hands and arms, led to the development and persistence of her injuries.

It was noted that the diagnoses referred to by Review Office in its March 1, 2017 decision were bilateral carpal tunnel syndrome, lateral epicondylitis and shoulder impingement. Although Review Office concluded that the worker did not work enough for her job to have contributed to the development of any of her conditions, the worker advisor submitted that the worker's body likely never became fully accustomed to the physical demands of her job because of her layoff periods. In other words, she experienced a change in employment with each return to work.

In addition, the worker occasionally worked overtime hours, which sometimes meant working as much as seven days per week. While the employer had indicated that the job involved a rotation of duties in two-hour intervals, the worker had indicated that this change was not implemented until sometime in 2015. Prior to that, the worker worked in a cold room, spending most of her eight-hour shifts on an assembly line, firmly grasping and snapping product apart.

The worker advisor submitted that despite a gap in medical reports between October 2014 and June 2015, it was noted on file that the worker's arms remained sore prior to her recall to work in May 2015. Then, after working for several weeks in early June packing cold product and making boxes, her soreness increased, resulting in her attending her doctor. When the worker returned to work in later May 2015, therefore, she did so in what appeared to have been a symptomatic and vulnerable state.

Given the extensive information on the worker's claim files, it was therefore submitted that an accident with the meaning of GECA occurred, and the panel should find in favour of the worker on this issue.

The worker's position with respect to the second issue was that they agreed with Review Office's conclusion that the left-handed duties on September 28 and 29, 2015 aggravated her pre-existing left upper extremity conditions, but also believed that the same job duties caused new acute strain injuries to the worker's left elbow and shoulder, and that due to the combination of these injuries, the worker experienced a loss of earning capacity and required medical treatment beyond October 13, 2015.

The worker advisor stated that it was evident that the WCB relied heavily on the WCB medical advisor's January 30, 2017 opinion in determining the duration of the worker's benefits. He submitted that the panel ought not to rely on that opinion, as it was not objectively impartial. The language used suggested that the medical advisor was compelled to identify a recovery timeframe related to a decision with which he did not agree. Further, while Review Office had determined that the worker's job duties on September 28 and 29, 2015 involved repetition and twisting of the left arm and wrist, the medical advisor chose to rely solely on an employer-generated email providing a second-hand description of the worker's job duties on those dates. The worker advisor submitted that the WCB medical advisor was also silent with respect to medical reports subsequent to the accepted aggravation which, in their view, showed that the worker's condition had not returned to its pre-aggravation baseline status.

It was submitted that the WCB medical advisor was correct, however, in noting that new diagnoses of a left shoulder and elbow strain were provided by the worker's physician in October 2015. Left-sided restrictions were then introduced which remained in effect after October 13, 2015. The worker advisor submitted that the worker's diagnosed shoulder and elbow strains were compensable injuries related to her job duties on September 28, and 29, 2015, and given the employer's subsequent acknowledgement in a November 9, 2015 email that they were unable to accommodate the worker's restrictions, the worker was entitled to additional benefits.

Employer's Position

The employer was represented by an advocate and by its Human Resources Coordinator.

The employer's position was that the medical evidence in its totality did not establish the necessary nexus between the worker's bilateral carpal tunnel syndrome, shoulder impingement and epicondylitis, and her employment, and the worker's appeals should be dismissed.

The employer's advocate began by acknowledging that the employer's operation involves repetitive activities, but noted that this fact, in and of itself, should not automatically lead to a conclusion that a relationship exists between the multiple diagnoses in this case and the worker's sporadic employment with the employer. The advocate urged the panel to be guided by the totality of the evidence on file.

The employer's advocate reviewed in detail the medical reports and findings from October 10, 2014 through to the September 28, 2015 date of incident and beyond. It was submitted that the totality of both the medical evidence and ergonomic evidence did not support that the worker's problems evolved from the duties performed on September 28 and 29, 2015. The advocate noted that there was significant inconsistency from one physician to the next in terms of diagnosis and findings. The advocate submitted that a number of different diagnoses tended to appear and disappear at different intervals and were noted at times by one physician but not another when seen in close proximity.

With respect to the suggestion that the worker's bilateral carpal tunnel syndrome, shoulder impingement and epicondylitis were attributable to the worker's duties in general, the employer's advocate submitted that notwithstanding the sporadic nature of the worker's employment due to periodic layoffs and two-hour shift rotations, there was a rather significant gap between the worker's cessation of work on June 22, 2015 and October 9, 2015 when the possible diagnosis of carpal tunnel syndrome was initially raised. He noted that the worker's epicondylitis condition and bilateral shoulder impingement were not mentioned until October 23, 2015 and November 6, 2015, respectively. The advocate submitted that if the medical conditions were a consequence of the worker's employment, one would have expected to see medical validation of those conditions during the time the worker was performing her regular duties, or at least in closer proximity to her last day worked, when her condition would have been in the acute stage, rather than months later as occurred on this file.

The employer's advocate submitted that all of the worker's diagnoses appeared at intervals following the cessation of modified duties on September 29, 2015 and vary from physician to physician. He submitted that while the worker initially attributed these conditions to the modified duties she was assigned on September 28 and 29, 2015, the degree of repetition involved with those duties would not satisfy the definition of repetitive. Given the nature of the modified duties involved, it was submitted that the probability of these medical conditions having developed during this "minute period of time" would be highly unlikely if not medically impossible

Analysis

Issue 1. Whether or not the worker's bilateral hand/arm/elbow and shoulder difficulties are compensable.

For the appeal on this issue to be successful, the panel must find that the worker's bilateral hand/arm/elbow and/or shoulder difficulties are causally related to her September 28, 2015 workplace accident.

Having carefully considered the information on file and the evidence and submissions of the parties, and having attended on site and reviewed the particular jobs which the worker performed, the panel is not able to make that finding.

The panel notes at the outset that the worker's claim has been accepted for a left-sided aggravation of pre-existing conditions due to the duties which the worker performed on September 28 and 29, 2015. While the employer's advocate expressed disagreement with that decision at the hearing, the acceptance of the worker's claim has not been appealed and is not at issue on this appeal.

The worker's position was that her job duties as a general labourer were responsible for her bilateral hand/arm/elbow and shoulder difficulties. At the request of the panel, the employer provided a detailed list of the various job duties which the worker performed from the start of her employment on September 30, 2013 through to September 29, 2015, including a daily breakdown of the time spent on each task. The worker advisor and the worker acknowledged at the hearing that the list appeared to be substantially accurate and was a reasonable basis on which to analyze the worker's job duties.

Following the hearing on December 14, 2017, the panel arranged for a site visit. The panel found it very helpful to attend at the site and review the jobs with the worker present. The panel paid particular attention at that time to the duties which the worker had identified as being especially problematic. The panel found that there were significant differences between various tasks as observed and reviewed with the worker at the site visit and the worker's earlier description of her duties at the hearing.

At the continuation of the hearing following the site visit, the worker responded to follow-up questions from the worker advisor and the panel. In response to a question as to whether there was anything else she felt was important about what we had seen or not seen at the site visit or anything further that she wished to describe, the worker noted that the site visit had taken place during a slower time of year, and it would be busier and more fast-paced during the busy seasons.

The panel places significant weight on the January 30, 2017 opinion of the WCB medical advisor, who stated:

Current evidence indicates that shoulder sub acromial impingement may be worsened by repetitive use of the shoulder at or above shoulder level, or in a position of risk for impingement: ie at shoulder level and internally rotated. Epicondylosis may be worsened by duties involving repetitive and forceful gripping/grasping and wrist movements of flexion/extension or supination/pronation. CTS may similarly be worsened by repetitive and forceful gripping, grasping, sustained awkward wrist posture, or sustained exposure to vibration. To the extent that such activities would aggravate the afore-mentioned conditions, the magnitude of the aggravation and severity of associated symptoms and associated functional limitations would be proportional to the duration and intensity of the exposure to the offending duties.

The panel accepts the WCB medical advisor's description of potential aggravating factors as being consistent with our understanding of factors or movements which may be causative of the worker's conditions and with factors which the worker advisor referred to in the course of the hearing.

Based on our review of the worker's job duties, the panel is unable to conclude that there was sufficient evidence of exposure to such factors, including forceful gripping or grasping, repetition or frequency, to find that the particular tasks which the worker and worker advisor identified or the worker's duties in general caused the worker's bilateral hand/arm/elbow or shoulder difficulties.

The panel notes that information on file and on the list of the worker's duties also shows that there were significant breaks in the worker's job or employment when she was laid off and/or on medical leave, including a three month absence from February 25 to May 28, 2015 and a further three-month absence from June 23 to September 27, 2015.

Based on the foregoing, the panel finds that the worker's bilateral hand/arm/elbow and shoulder difficulties are not causally related to her September 28, 2015 workplace accident. The panel therefore finds that the worker's bilateral hand/arm/elbow and shoulder difficulties are not compensable.

The worker's appeal on this issue is dismissed.

Issue 2. Whether or not the worker is entitled to benefits after October 13, 2015.

For the appeal on this issue to be successful, the panel must find that the worker continued to sustain a loss of earning capacity and/or required medical aid after October 13, 2015 as a result of her September 28, 2015 workplace accident. The panel is not able to make that finding.

The worker's position on this issue was that her left-handed duties on September 28 and 29, 2015 not only aggravated her pre-existing left upper extremity conditions, but also caused new acute strain injuries to her left elbow and shoulder, and that due to the combination of these injuries, she experienced a loss of earning capacity and required medical treatment beyond October 13, 2015.

The evidence shows that the worker was performing modified duties using her left arm only for a full day on September 28, and four hours on September 29, 2015. Based on our review and consideration of those duties, as demonstrated at the site visit, the panel is unable to find that the performance of those duties caused new acute strain injuries to the worker's left elbow and shoulder.

The panel is further unable to find that the evidence supports that the worker continued to suffer from an aggravation of her pre-existing left upper extremity conditions beyond October 13, 2015. In arriving at that conclusion, the panel places weight on the January 30, 2017 opinion of the WCB medical advisor that:

The duties reportedly performed on Sept 28 and 29 2015 (Jan 19 2016 memo) do not appear to involve duties likely to significantly aggravate any pre-existing condition at the upper extremities specifically shoulder impingement, epicondylosis, or CTS. Also, the duties were performed for a very short period of a total of only 12 hours over two days.

Accepting the contention of the review office that such an aggravation of these conditions did in fact occur, it is therefore concluded that any such aggravation would have been very minor and would not have been expected to have increased symptoms and associated functional limitations (ie need for restrictions) in a material way for more than 7-14 days.

Based on our detailed review of the worker's job duties, the panel agrees with and adopts the WCB medical advisor's opinion that such an aggravation of the worker's job duties on September 28 and 29, 2015 would have been very minor.

Based on the foregoing, the panel finds that the worker did not sustain a loss of earning capacity or require medical aid after October 13, 2015 as a result of her September 28, 2015 workplace accident. The panel therefore finds that the worker is not entitled to benefits after October 13, 2015.

The worker's appeal on this issue is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 6th day of July, 2018