Decision #131/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A hearing was held on September 17, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
The worker filed a Worker Incident Report with the WCB on November 20, 2017 noting that she injured her right wrist at work on July 30, 2017 in an incident that involved working with a client. Also on her Worker Incident Report, the worker reported that she initially noticed the symptoms in December 2016 when shoveling snow and that the symptoms got progressively worse and were aggravated by other job duties.
On August 18, 2017, the worker saw her family physician who noted tenderness and some swelling to the ulnar aspect of the worker's right wrist after the worker reported pain when she used that wrist. The worker was at that time diagnosed with a strain/tendinitis to her right wrist and restrictions of limited lifting were recommended.
The worker attended an appointment with a sports medicine physician on October 18, 2017. The worker reported to the sports medicine physician that she felt right sided volar/ulnar sided pain in her wrist that was worse with lifting and pulling. The worker also questioned whether the pain was a recurrence of a previous injury, possibly related to repetitive use. The sports medicine physician did not provide a diagnosis but did note that the worker had "Tender wrist flexors - non-specific" and recommended that she restart physiotherapy. On October 18, 2017, the worker attended for an initial assessment with a physiotherapist. She reported gradual increasing ulnar sided wrist/forearm pain and complaints of a constant dull ache. The physiotherapist diagnosed the worker with a right wrist flexor and extensor carpi ulnaris tendonosis, with residual underlying distal radial ulnar joint instability and recommended restrictions of limit lifting to ten pounds for two weeks.
The WCB advised the worker on January 8, 2018 that her claim for right wrist difficulties was not acceptable as the WCB could not establish that an accident had occurred in relation to her job duties on July 30, 2017.
On July 11, 2018, the worker submitted additional medical information and requested the WCB reconsider a decision made on a previous WCB claim. The worker's file, including the information submitted on July 11, 2018 as well as the worker's description of her job duties provided on August 14, 2018, was reviewed by a WCB medical advisor on August 15, 2018. The medical advisor was of the view that the worker's right wrist difficulties were related to the "…highly repetitive movements of the wrist or repetitive movements of the wrist against force (particularly grip)" of her job duties. On August 17, 2018, the worker was again advised that her claim was not acceptable.
The worker's representative requested reconsideration of the WCB's decisions to Review Office on November 16, 2018. In their submission, the worker's representative noted the medical evidence provided indicated that the worker's right wrist condition was pre-existing, placing her at an increased risk of injury and stated that the worker's claim should be accepted as her injury was caused by her pre-existing condition in connection with her job duties.
Review Office determined on December 5, 2018 that the worker's claim was not acceptable on the basis that the worker had fully recovered from her previous WCB claim involving her right wrist. Further, Review Office noted that although the worker reported that she initially felt symptoms in her wrist in December 2016, she did not seek medical treatment at that time; therefore, Review Office was unable to establish that an injury occurred at that time. Review Office also noted that when the worker sought medical treatment on March 8, 2017, she did not report that her right wrist pain was due to her job duties and when she sought medical treatment on August 18, 2017, no work-related cause for her right wrist difficulties was reported. For this reason Review Office was not able to establish that the worker suffered an accident on July 30, 2017.
The worker's representative filed an appeal with the Appeal Commission on February 11, 2019. An oral hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and the policies approved by the WCB's Board of Directors.
Section 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.
The Act defines accident in s 1(1) as a chance event occasioned by a physical or natural cause, including "…any event arising out of, and in the course of, employment, or thing that is done and the doing of which arises out of, and in the course of, employment…and as a result of which a worker is injured."
The WCB has established Policy 188.8.131.52, Pre-Existing Conditions (the "Policy") to address the issue of pre-existing conditions. The Policy states that the WCB will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not an injury by accident arising out of and in the course of the employment. The WCB is only responsible for personal injury as a result of accidents that arise out of and in the course of employment. The Policy goes on to state 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 WCB will accept responsibility for the full injurious result of the compensable injury.
The worker was represented in the hearing by a union representative who provided the panel with a written submission in advance of the hearing and made oral submissions in the course of the hearing. The worker answered questions put to her by her representative as well as by members of the panel.
The worker's position as outlined by her representative is that the worker was injured in the period of December 2016 through July 2017, arising out of and in the course of undertaking the repetitive, forceful and awkward wrist movements required by the duties of her job, and that this injury occurred in the context of a pre-existing right wrist injury that occurred in June 2016.
More specifically, the worker's representative took the view that the worker's right wrist was initially aggravated by heavy or awkward movements, such as shoveling snow in the course of her employment in December 2016 and that the symptoms progressed over time to the point that even less physically demanding work activities would cause her pain. The symptoms were first evident within weeks of returning to her employment and were made worse by her pre-existing wrist injury.
The worker in her testimony highlighted two specific incidents or events that resulted in a spike in her right wrist symptoms - shoveling snow at work in December 2016 and using a Hoyer lift in July 2017. The worker's representative asked the panel to consider the detailed description of the worker's duties on file and noted that these duties demonstrate that her work involved repetitive, forceful and awkward movements.
In sum, the worker's position is that she was injured as a result of the workplace duties undertaken leading up to and including July 30, 2017 and the pre-existing wrist injury incurred in June 2016, which placed her at increased risk of injury.
The employer was represented in the hearing by a case management specialist and a manager of occupational health services, who provided the panel with a written submission as well as making oral submissions and answering questions in the course of the hearing.
The employer's position is that the claim should not be accepted as the evidence does not support that the worker had a right wrist injury related to her employment activities of July 30, 2017. The employer noted that the worker did not report an injury to the employer until November 18, 2017 because the worker believed the injury to be a recurrence of a prior injury that occurred in the context of other employment. Further, the employer noted that the worker did not seek medical attention until August 18, 2017, nearly 3 weeks following the purported workplace injury.
The employer took the position that the worker was not engaged in repetitive work duties that would result in development of a repetitive strain injury, but rather that her tasks were varied. Further, the employer pointed to inconsistent descriptions of the injury set out in the medical reports, referencing strain, tendinosis, tendinopathy and tendinitis and noted that the WCB Medical Advisor commented that the worker's condition cannot be related to a specific injury. As well, the employer noted that the worker's treating physiotherapist tied the worker's presentation in October 2017 to the injury the worker sustained with another employer in June 2016.
In sum, the employer took the position that the claim should not be accepted as the medical information does not support a finding that the worker was injured in July 2017 arising out of and in the course of employment.
The issue for determination by the panel is whether or not the claim is acceptable. In order to find that the claim is acceptable, the panel must determine that the worker suffered an injury as a
result of an accident in the course of her employment.
In determining this question, the panel must consider whether the evidence supports that there was an accident arising out of and in the course of the worker's employment and if so, whether the worker was injured as a result.
The employer took the position that the evidence does not support the worker's claim that she was injured as a result of an accident that occurred in the course of her employment on July 30, 2017 nor does the evidence establish a pattern of repetitive work tasks required to be undertaken by the worker that could support a finding that an accident occurred.
The position taken by the worker's representative in the hearing was that the worker's injury was the result of the physical demands of her workplace duties and in particular, to overuse of her already vulnerable right wrist through duties that involved repetitive, forceful and awkward wrist movements over a period of time.
The panel noted that the worker, in her testimony, pointed to two specific incidents as causing a spike in her right wrist symptoms: first, shoveling snow in December 2016 and then, use of the Hoyer lift in July 2017; but the worker also identified what could be described as a cumulative effect of undertaking her regular work duties over the period of time between these two incidents which resulted in increasing symptoms in her right wrist during that interval. The worker described to the panel as well as in her August 14, 2018 email to the WCB case manager the nature and kind of physical demands of her job in this time period. The panel notes that many of the tasks outlined involve forceful, awkward or repetitive motions of the wrist, although the information does not suggest ongoing repetition of any particular tasks or motions.
As noted in the August 15, 2018 report from the WCB medical advisor, the worker's prior workplace injury "…may have lowered her threshold to developing an overuse injury after less exposure to manual work with the wrist." In other words, the worker's pre-existing injury to her wrist made her more vulnerable to an overuse or repetitive strain type of injury as a result of the work duties undertaken than a person without such a pre-existing injury would have been though doing the same work. The panel found this opinion persuasive.
The medical reports available to the panel support the worker's position that her right wrist was not fully healed when she resumed work with this employer in late 2016. The neurologist seen by the worker for unrelated concerns in March 2017 noted that the worker continued to experience painful symptoms in her right wrist since returned from modified duties some months earlier and recommended physiotherapy resume. When the worker saw her family physician on August 18, 2017, she reported pain when using her right wrist, which led her doctor to recommend limited lifting.
On October 18, 2017 the worker sought medical attention from a specialist in sport medicine. At that time, she reported that the right sided volar/ulnar sided pain in her wrist was worse with lifting and pulling and questioned whether the pain was a recurrence of a previous injury, or possibly related to repetitive use. She also consulted with a physiotherapist the same day, reporting that she was experiencing a gradual increase in ulnar sided wrist pain that had worsened with taking on heavier duties at work.
The medical findings and reports lend support to the worker's position that her right wrist, already injured as a result of the earlier compensable event, was vulnerable to further injury when she resumed work with this employer in late 2016. Further, the reports support the position the cumulative effect of undertaking the physical tasks associated with this work resulted in increasing symptoms or aggravation of her pre-existing compensable injury.
While the employer raised concerns with respect to the worker's delay in reporting and in seeking medical attention, the panel is satisfied with the worker's explanation that she initially believed that the symptoms were only related to recurrence of the compensable injury of June 2016. This is supported by the worker's early comments to WCB in August 2017 when she sought to reopen that claim. When WCB advised the worker that the current symptoms could not be related to her prior compensable injury, the worker then made a new claim, which is the basis of this appeal. The panel finds that the delay in reporting is directly attributable to the confusion as to whether the worker should claim under the earlier claim file or open a new claim.
On the basis of the evidence on file and heard by the panel, we are satisfied, on a balance of probabilities that as a result of the cumulative effect of the physical tasks the worker undertook over the period of December 2016 through July 30, 2017 in the course of her general work duties, an accident occurred. Taking into account the worker's pre-existing right wrist vulnerability, the panel finds, on a balance of probabilities, that the worker was injured as a result of the cumulative effect of the work duties undertaken during that time period.
The claim is therefore acceptable.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 31st day of October, 2019