The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the claim was not acceptable. A hearing was held on January 31, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable for bilateral tendinopathy of her wrists.

Background

On February 24, 2017, the worker filed a claim regarding her wrists that she related to repetitive mopping that she was doing while at work. At her February 28, 2017 appointment with her chiropractor, she was diagnosed with "Left wrist tendonitis, LT wrist strain/sprain" and the worker's description of the injury was noted as "cleaning floors felt pain in left wrist, thumb."

The worker saw a nurse practitioner on March 2, 2017 who diagnosed a repetitive strain left wrist and an x-ray was done of the worker's left wrist. The results of the x-ray were:

A recent fracture or other acute bony process is not identified.

The nurse practitioner also noted the worker's description of the injury as being "repetitive work environment; re-injury of wrists" as the worker had a previously accepted claim for bilateral wrist tendonitis. The nurse practitioner identified that the worker was capable of modified duties with the restriction of "avoidance of gripping/rotational activities." The worker also saw the physiotherapist on March 2, 2017 who diagnosed the worker with bilateral tendinopathy.

At the worker's follow-up appointment with the nurse practitioner on March 13, 2017, it was noted that with less edema on the worker's wrist, a small ganglion-like growth could be seen and an MRI was ordered. The nurse practitioner advised that the worker could return to light duties as of March 15, 2017 with reduced left hand involvement and not lifting any item weighing more than five pounds.

On March 22, 2017, the WCB advised the worker that her claim was not accepted as while it was accepted that the worker used her hands and wrists while performing her job duties, it could not be established that the duties she performed were forceful and repetitive for a prolonged period of time that would be consistent with a repetitive type injury. The WCB advised the worker on May 9, 2017 that they were upholding their decision to not accept her claim. A further review of the worker's claim had been conducted after the worker's representative submitted further medical information and they had reviewed her job description provided by her employer. As well, a WCB medical advisor had reviewed the claim on April 24, 2017 and provided the following opinion in response to questions asked by Case Management:

1. Left wrist ganglions. 

2. The exact cause of ganglions, which may develop and resolve spontaneously, remains uncertain. Ganglions are highly prevalent in the general population and are often asymptomatic. There is insufficient medical evidence to support occupational factors as being causative including: 

• Vibration 

• Highly repetitive work alone or in combination with other factors 

• Forceful work 

• Awkward postures 

• Keyboard activities 

• Cold environment 

• Length of employment 

3. There is no medical evidence of other pre-existing conditions on this file.

On June 13, 2017, the worker's representative requested reconsideration of the decision to the Review Office.

Review Office upheld the May 9, 2017 decision of the WCB. In making this determination, Review Office accepted the opinion of the WCB medical advisor that the occupational risks of developing ganglions include duties that involve vibration, high repetitive work, forceful work and awkward postures but did not find that the worker's job duties were "…causative in the development of the left wrist ganglion nor did her job duties aggravate a pre-existing ganglion." Review Office also found that the evidence provided did not support that the worker had a pre-existing bilateral wrist condition. It was determined that the worker had recovered from her prior injury.

The worker's representative filed an application to the Appeal Commission on September 13, 2017. An oral hearing was held on January 31, 2018.

After the hearing, the panel contacted the physician who operated on the worker's left wrist in 2017. The physician reported that:

[worker] is a 41 year old female patient who was seen in my clinic in april, 2017 with a left wrist ganglion cyst. After discussing the pros and cons of the different management options the patient requested to proceed with surgical excision of her left wrist ganglion swelling.

The patient had a left wrist dorsal ganglion surgical removal on May 31, 2017. The patient did very well postoperatively. She was seen two weeks. Six weeks, and three months after surgery and had a good outcome.

The physician commented further that in April 2018 the worker presented with a new cystic swelling over the dorsum aspect of her left wrist after she lifted a heavy object at work. He reported that the existing swelling is consistent with a new ganglion.

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:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

Accident is defined in subsection 1(1) of the Act, which provides as follows:

"accident” means a chance event occasioned by a physical or natural cause; and includes 

(a) a willful 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 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 44.10.20.20, Ganglia, provides that the WCB will accept a claim for medically diagnosed ganglion where it is probable that the condition was caused or aggravated by an accident arising out of and in the course of employment.

The policy states:

When there is a medical diagnosis of a ganglion, the following will be used as criteria for acceptance: 

1. A history of prolonged, highly repetitive movement of the area affected, usually the wrist, particularly if a weight is involved; or 

2. A well established accident involving a blow to the area where the ganglion later appears. 

3. Medical opinion indicates that the ganglion is a result of work-related activity or injury.

Worker's Position

The worker is appealing the WCB Review Office decision that her claim is not acceptable.

The worker was represented by a worker advisor and assisted by an interpreter. The worker's representative provided an oral and written submission on behalf of the worker. The worker answered questions from the panel.

The worker's representative submitted that there is a causal relationship between the onset of the worker's bilateral wrist difficulties, including the diagnosis of left wrist ganglia, and her work duties as a housekeeper for the employer.

The worker's representative addressed the issue of a prior injury with another employer. She advised that the worker had recovered from a bilateral wrist/thumb injury which occurred at her previous employment. She said that the worker left the previous employment and attended school until she started working for the accident employer. She began working as a housekeeper with the accident employer in August 2016.

In reply to a question from her representative about her health when she started working with the accident employer, the worker advised she was "absolutely healthy" and had recovered from her previous workplace injury.

Regarding her duties with the accident employer, the worker advised that she had a full-time position, working as a housekeeper. Her duties included cleaning patient rooms, offices, washrooms and some hallways. She said that she used the same movement with her hands through the whole work day. When cleaning patients' rooms she said that began from a higher level with the TV and bed, and worked downwards to cleaning the floors and finally emptying the garbage.

The worker advised that she cleaned the floors with a floor mop that required her to move the mop in a figure 8 pattern. The worker advised that her right hand grasped the handle and her left hand made the figure 8 movements.

Regarding symptoms, she advised that after one month her hands began to bother her. She said it wasn’t painful but was uncomfortable. She then began to have pain in her right wrist.

She advised that could not use gloves or braces when performing her duties due to sanitary requirements. She tried using tensor bandages but these did not help. On the recommendation of the nurse-practitioner, she tried using bicycle gloves, but these also did not comply with sanitation requirements.

She started to wear braces and continues to wear a brace on her left hand, even after having surgery. She said that she wears the brace at her current job but does not wear it at home.

The worker advised that she is currently working at a school as an educational aide as well as working at a day care facility.

In reply to a question about how her wrist injury related to her prior injury, she said that her nurse practitioner advised that it’s a different problem than in 2014. Her previous injury involved her thumbs because she needed to squeeze the trigger hard. Her current injury is from moving the mop.

She said she developed a bump on her left wrist which the chiropractor noticed and was later noted on an MRI as a ganglion.

The worker advised that she had surgery on her wrist in 2017. She said that currently:

My right hand, I feel like very good, I’m happy with my right hand, and I can do what I need to do. And left hand, I need to be very careful, for example, it was slippery outside and I fell down. 

Automatically, I put my hand like that, and after that I cried because I hit my hand like that, it’s, like ground.

The worker advised that the ganglion is returning to her left wrist.

Regarding a relationship to her employment, the worker's representative noted that:

The March 29, 2017 report from the nurse practitioner, and the March 30, 2017 physiotherapy report attribute the diagnosis of bilateral wrist tendinopathy and left wrist repetitive strain to [worker's] job duties, and more specifically, the activity of mopping.

In answer to a question the worker indicated that in addition to the cleaning duties noted already, in the final hour of their shifts housekeepers would perform project cleaning which included scrubbing and burnishing the floors using machines. She said this involved using a scrubber and then a burnishing machine. A representative of the employer advised that the burnishing machine runs from 1000 to 1500 rpms on 19 inch pads. She acknowledged that she would not do scrubbing and burnishing every shift and would only operate the burnishing machine for about 10 minutes.

In closing the worker's representative submitted that:

Although the 2014 injury was more specific to the thumbs, medical information did identify wrist symptoms as well. [Worker] explained to the panel members, from the time she ceased working for [former employer] until the time she started with [accident employer], she did not participate in any hand/wrist activities. Although the onset of non-painful symptoms occurred relatively soon after her commencing her position with [accident employer], the activity of mopping, as described by [worker], is a strenuous activity for a pre-existing wrist condition.

[worker] explained that her condition is somewhat improved with splinting, but became progressively worse until she sought medical attention in February 2016 (sic). So even though [worker] experienced non-painful symptoms in September 2017 (sic), she was very painful with her symptoms six months later.

Several diagnoses have been provided, and we have quoted the medical reports that support these different diagnoses. The primary diagnosis is a left wrist ganglia. Although ganglias can occur spontaneously, they can also occur from a repetitive stress of the wrist. In conclusion, we believe, based on the diagnosis and the medical information, and other information that has been provided, [worker] sustained bilateral wrist tendinopathy, left wrist repetitive strain, and a left wrist ganglia in association with her job duties.

In response to additional information received after the hearing from a physician who operated on the worker's left wrist ganglion, the worker's representative submitted that this information supports the relationship between the formation of the ganglion and the worker's work duties.

Employer's Position

The employer was represented by its Vice President of Human Resources, Disability Case Coordinator, and Regional Manager WSH. The Vice President set out the employer's position and answered questions from the panel.

He advised that the employer's payroll records indicate the worker was initially hired on August 23, 2016 as a casual housekeeper, and worked a total of 1,028 hours. He noted that the worker reported her symptoms to care providers starting September 6, 2016, and at that time, she had worked a total of 11 shifts of 85.25 hours from date of hire to the onset of her symptoms.

The employer representative noted that the worker's duties included:

…an extensive cleaning checklist, with disinfectant of door push plate, light switches, door handles, bedside table, over-bed table, call bell, bed rails, chair arms, TV buttons, faucet handles, and elevator buttons, telephones and hallway railings, in addition to the mopping.

Regarding the task of mopping, the employer representative explained that the figure 8 movement is used to keep the dust and dirt at the front of the mop head. He said the mop uses a microfiber, between 18 and 24 inches wide, with a handle. The mop is switched from dry to wet using a Velcro mop head.

The employer representative said that the employer has timed the mopping process at a maximum of seven minutes per room for mopping. He said:

It would be a maximum of two and a half hours of mopping movement per a 7.75 shift, and that would be in the biggest unit in our medical unit that has the most rooms to clean, and that time would decrease in the other units that have less rooms to clean.

The employer representative submitted that:

The diagnosis identified by her care providers include tendinitis, strain/sprain, tendinopathy, carpal pain, repetitive wrist strain and wrist ganglions. All these diagnoses are a form of repetitive strain injury, and this type of injury is caused by a prolonged repetitive movement which may also involve vibration and forceful movement with weight.

It is our position that the nature of the worker’s job does require regular use of her hands, however, there are a variety of movements based on the type of tasks being completed. Therefore, there is no one movement required to be done over an extended or prolonged period of time.

He also submitted that WCB policies 44.10.20.20, Ganglia, and 44.10.20.10, Pre-existing Conditions, were properly interpreted and applied in the situation.

He noted the initial medical intervention was sought on September 6, 2016. A total of 82.25 hours were worked prior to the onset of symptoms and this period of time would not reasonably be considered a prolonged history.

He noted that she had a satisfactory recovery from a previous injury in 2014 and accordingly the worker did not have a pre-existing condition.

In reply to a question from the panel regarding the time required to clean a patient room, a representative of the employer advised:

So they did go and determine that it takes approximately 20 to 25 minutes to clean a room, and out of that length of time, they spend approximately seven minutes cleaning and mopping the floor within that timeframe... They did record the length of time it took to clean an average patient room.

In response to additional information received after the hearing from the physician who operated on the worker's left wrist ganglion, the employer representative submitted that:

There is no evidence on file that would suggest a direct link between work tasks and the development of ganglion cysts. This is supported by the pain and cystic swelling noted in the left wrist area in December 2017 as noted in the April 19, 2018 letter from [physician] and the last day worked was March 1, 2017.

Analysis

The worker is appealing the WCB decision that her claim is not acceptable. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of her employment. The panel is able to make this finding. The panel finds that the worker developed bilateral tendinopathy of both wrists in performing her duties as a housekeeper for the employer.

However, the panel finds that the worker's ganglion condition is not related to her work with this employer.

In finding that the worker developed tendinopathy, the panel relies on the opinion of the treating chiropractor who diagnosed "left wrist tendonitis and LT wrist strain/sprain" and the opinion of the physiotherapist who diagnosed bilateral tendinopathy of the wrists. The panel also relies, in part, on the March 2, 2017 report of the nurse practitioner which identifies the worker's left wrist condition as "repetitve strain left wrist".

However, the panel does not accept the nurse practitioner's opinion on the relationship of the worker's ganglion condition to her employment. The panel attaches greater weight to the April 24, 2017 opinion of the WCB Sports Medicine Advisor who opined that that there is insufficient evidence to support occupational factors as causative of the worker's ganglions.

In reaching its decision, the panel also considered WCB Policy 44.10.20.20. The policy provides that the criteria for the acceptance of ganglion includes: 

1. A history of prolonged, highly repetitive movement of the area affected, usually the wrist, particularly if a weight is involved;

With respect to the diagnosis of ganglion cysts, the panel finds that the worker's job duties and length of employment do not meet the description noted above.

The panel finds, on a balance of probabilities, that the worker sustained bilateral tendinopathy of her wrists as a result of her duties with the accident employer.

The worker's appeal is approved, in part.

Panel Members

A. Scramstad, Presiding Officer
C. Devlin, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of July, 2018