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 is not acceptable. A hearing was held on October 31, 2019 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On August 17, 2015, the worker filed a Worker Incident Report with the WCB for an injury to her right thumb and forearm, with an incident date of June 14, 2015. The worker attributed her injury to "…constantly using my right thumb and forearm cutting hair."

In a Physiotherapy Initial Assessment report dated July 29, 2015, the physiotherapist noted that the worker reported pain and swelling in the right thenar eminence and forearm. The physiotherapist diagnosed the worker with "overuse strain thenar (intrinsic and extrinsic thumb muscles) and tendons" and noted that the worker had reduced her work hours to four days per week, which had helped.

On August 10, 2015, the worker was seen by a sports medicine physician, who noted the worker's subjective complaints of "no strength" in her right hand and numbness and tingling in the carpometacarpal and thenar region. The sports medicine physician queried a ganglion in the web space of the worker's right hand and referred the worker to a second physiotherapist for treatment.

A Physiotherapy Initial Assessment report was received from a second physiotherapist who assessed the worker on August 24, 2015. It was noted in that report that the worker described her injury as being from repetitive gripping and pinching, and reported "pain with any handling of objects - pinch or grip." The physiotherapist noted a "cyst-like" local thickness in the first dorsal space and local swelling through the second and third metacarpophalangeal joint, into the worker's right dorsal wrist and forearm. The physiotherapist diagnosed the worker with "thenar - cyst - hand sprain - tendosynovitis" and recommended restrictions of non-repetitive light duties and modified hours.

On September 16, 2015, the worker underwent an MRI of her right hand, which showed a "Small ganglion medial to the first MCP [metacarpophalangeal] joint."

On October 5, 2015, the worker discussed her claim with her WCB adjudicator. The worker attributed the symptoms in her right hand to the constant use of her hand while using scissors to cut hair. She said that she had been working with her employer for 15 years, that she had no previous injuries to her right hand and that there was no increase in her workload. She advised that she had been working five days a week at eight hours a day, but started reducing her hours to four days a week, and would be reducing her hours that week to six hours a shift. She further advised that she had developed a cyst on her right wrist tendon.

On November 23, 2015, the worker was seen by a hand surgeon, who opined that the worker had a "…ganglion within her first dorsal webspace but this is in conjunction with what appears to be classic carpal tunnel…" The surgeon referred the worker for a nerve conduction study to assess her median nerve.

The nerve conduction study was performed on December 31, 2015, and indicated:

1. Moderate right median neuropathy at the wrist. 

2. Very mild median neuropathy at the wrist. 

3. No evidence of right C5, C6 radiculopathy based on needle EMG studies.

The physiatrist who conducted the nerve conduction study opined that the worker had a good clinical correlate for carpal tunnel syndrome. The physiatrist noted that he could not find evidence of C5-6 radiculopathy. He further opined that the worker's forearm pain looked like tennis elbow and the worker had the classic physical signs for that condition, of tenderness to palpation, pain with resistance and pain with stretch.

On January 11, 2016, the worker attended a further appointment with the hand surgeon, who reported that the nerve conduction studies demonstrated "signs of moderate right carpal tunnel syndrome" but that the worker's symptoms were "…not particularly dramatic." The surgeon noted that the worker was not interested in surgery at that time and prescribed a removable night brace for her wrist. The surgeon also noted that the worker had a small ganglion in the dorsal first webspace which was not growing rapidly.

On January 22, 2016, Compensation Services advised the worker that they were unable to accept responsibility for her claim, as a causal relationship between her right wrist and thumb difficulties and the performance of her job duties could not be established.

On December 6, 2017, a worker advisor acting on behalf of the worker contacted the WCB and requested a new decision specifically addressing all of the diagnoses on file dating back to 2015. The representative submitted that there was a clear medical history and progression of symptoms from 2015, and noted that the worker had been seeking physiotherapy treatment at her own cost and had lost time from work due to her inability to perform her regular duties.

The WCB gathered medical information from the worker's treating healthcare providers, including an MRI report dated February 19, 2017 and a report from the treating hand surgeon dated March 28, 2017. In his report, the hand surgeon opined that the ganglion indicated on the MRI was "…almost identical to that from a year and a half ago." The surgeon noted that the worker reported that the ganglion becomes "inflamed periodically when she cuts hair for more than seven hours in a day" but with modifications to her schedule and hours of work, her symptoms were tolerable. The hand surgeon recommended that the ganglion be left alone and that the worker did not require regular follow-up.

At a further appointment with the hand surgeon on January 15, 2018, the surgeon opined that the worker "…has a known small ganglion in the ulnar aspect of the first MCP joint…Unfortunately her discomfort is not exactly over the thumb MCP but rather more in the dorsal first interosseous on the radial aspect of the second metacarpal…Based on the location of the small gangrene (sic), I am not totally convinced that removing this is going to help her discomfort..." The surgeon recommended that the worker continue with her activity modification.

On March 28, 2018, the worker's file was reviewed by a WCB medical advisor. The medical advisor opined that a diagnosis for the worker's reported pain in her right hand first web space (between her thumb and index finger) had not been determined, and her treating hand surgeon had noted that the area of tenderness did not correspond with the location of the ganglion found on the MRI reports. The WCB medical advisor further stated that there were no recent reports from the worker's treating healthcare providers regarding her symptoms of carpal tunnel syndrome or lateral epicondylitis. He noted that the conditions of carpal tunnel syndrome and lateral epicondylitis commonly occur in the general public without well recognized triggers.

The WCB medical advisor also noted that "Workplace duties involving repetitive or sustained forceful gripping/grasping, or repetitive and forceful wrist movements of flexion/extension, prolonged awkward wrist postures, or exposure to vibration or cold temperatures are recognized as potentially contributing to the development of CTS [carpal tunnel syndrome]." The WCB medical advisor further stated in regard to lateral epicondylosis that "…workplace duties involving repetitive and forceful wrist movements of flexion/extension and/or supination/pronation may contribute to the development of the condition, as may direct blows to the area of the epicondyle."

On March 29, 2018, Compensation Services advised the worker that all of the information on file had been reviewed and they had determined there was no new evidence to warrant a change in the original decision. Compensation Services noted that the medical information on file provided multiple diagnoses of ganglion cyst, epicondylitis and bilateral carpal tunnel syndrome. Compensation Services stated that as there was no new inciting incident which triggered the onset of the worker's symptoms and no provocative workplace factor, they were unable to establish a relationship between her current diagnoses and an accident as defined in The Workers Compensation Act (the "Act") and her claim was not acceptable.

On May 22, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker noted that her job duties involved repetitive use of her hand including turning, twisting and pressure on her hand while holding different tools. She noted that the work is hard, and asked that Review Office closely examine the duties she performed.

On July 4, 2018, Review Office determined that the worker's claim was not acceptable. Review Office advised that they were unable to establish that the forces generated by the worker's use of scissors and other tools or any of the additional movements or duties involved with her work, would be substantive enough to develop the findings noted by the examination results. Review Office accepted the opinion of the WCB's medical advisor that a diagnosis to account for the worker's reported pain in her right hand first web space had not been determined. Review Office stated that while a diagnosis in and of itself was not required to support claim acceptance, their inability to establish activity levels or risk factors significant enough to produce a repetitive strain injury supported that there was no determinable cause/effect relationship and therefore no injury. Review Office concluded that they were unable to determine that the worker developed her issues while performing work duties or an activity incidental to her employment.

On November 16, 2018, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by 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.

"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.

"Occupational disease" is further defined in subsection 1(1), as follows:

"occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions 

(a) peculiar to or characteristic of a particular trade or occupation; 

(b) peculiar to the particular employment; or 

(b.1) that trigger post-traumatic stress disorder; 

but does not include 

(c) an ordinary disease of life; and 

(d) stress, other than an acute reaction to a traumatic event.

WCB Policy 44.10.20.10, Pre-Existing Conditions (the "Policy") addresses the issue of pre-existing conditions when adjudicating and administering compensation, and states, in part, that:

The Workers Compensation Board (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 "personal 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 are determined to be arising out of and in the course of employment.

The following definitions are set out in the Policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was represented by a worker advisor, who provided a written submission in advance of the hearing, and made an oral presentation, a written copy of which was also provided to the panel. The worker responded to questions from her representative and from the panel.

The worker's position was that the evidence supports that her right hand and forearm injuries are caused by her employment duties and her claim is acceptable.

The worker's representative submitted that the worker's claim meets the definition of an accident as a thing that is done and the doing of which arises out of, and in the course of, employment, including an occupational disease, and as a result of which the worker was injured.

The worker's representative reviewed the medical reports on file. The representative submitted that the early medical reports confirm carpal tunnel syndrome, elbow epicondylitis and hand sprain injuries that arose as a result of the worker's job duties.

It was submitted that the worker's injuries are in the nature of repetitive strain types of injuries which are well known and accepted within the occupational group of hairdressers. The worker's representative noted that in support of their position, they had provided medical articles which confirm such a relationship between carpal tunnel syndrome and the occupation of hairdressers.

The worker's representative submitted that evidence that some of the worker's symptoms decrease or subside when she is not at work, then reoccur while she is performing her work duties, confirms that there is a direct cause and effect relationship between her work activities and her right-sided injuries.

The worker's representative submitted that the worker's position that the claim is acceptable is also supported by the March 28, 2018 opinion of the WCB medical advisor, who stated that the job duties could contribute to the development of carpal tunnel syndrome and confirmed that the worker's carpal tunnel syndrome was moderate.

The worker's representative further noted that the WCB medical advisor had provided his opinion that the worker had no relevant pre-existing conditions, and submitted that on a balance of probabilities, if the worker had no pre-existing conditions, her injuries were related to her employment.

In conclusion, the worker's representative submitted that the medical testing, examination findings and medical opinions support that the worker's symptoms and diagnoses are related to her employment as a hairdresser. It was submitted that the test under both subsections 1(1) and 4(1) of the Act have been met, that the claim is therefore acceptable and the worker is entitled to compensation.

Employer's Position

The employer was represented by an advocate who participated in the hearing by teleconference.

The employer's position was that the medical information on file does not establish a causal connection between the worker's medical condition and her job demands, and her claim is therefore not acceptable.

The employer's advocate submitted that the employer relies on medical information to provide evidence of a relationship between the worker's job activities and an identified medical condition. In this case, the medical information does not establish such a relationship as being causative of the worker's symptoms.

The advocate submitted that while the information on file suggests that the worker may have carpal tunnel syndrome, there is no formal diagnosis of that condition. She stated that the employer has difficulty accepting that there is a work relationship where a medical diagnosis has not been provided.

The employer's advocate further noted that carpal tunnel syndrome occurs in the general population and is not always the result of work activities. She recognized that literature also suggests that work activities such as assembly line work, heavy physical work and work of a very repetitive nature can cause carpal tunnel syndrome. Based on the available medical evidence, however, such a link has not been established in this case.

In conclusion, it was submitted that the employer does not dispute that the worker has certain symptoms, but is of the view that a relationship between the worker's symptoms and her job duties has not been established.

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 a personal injury by accident arising out of and in the course of her employment, or in other words, that the worker's right hand and forearm difficulties or issues were caused, aggravated or enhanced by her job duties. The panel is unable to make that finding, for the reasons that follow.

The panel notes that the worker's claim is not based on any specific event or accident that occurred at work. The claim, as advanced, is for a cumulative injury with a long-term onset.

Based on our review of all of the evidence and information before us, as documented on the file and as presented at the hearing, the panel accepts that the worker has a ganglion and issues or difficulties with her right hand or forearm, but is unable to find that the worker's ganglion or her other issues or difficulties are causally related to her employment.

In arriving at this conclusion, that panel notes that the evidence shows the worker had been performing the same job functions for more than 14 years when she filed her claim, or approximately 19 years as at the time of the hearing. In response to questions from the panel, the worker confirmed that there had been no real changes in her duties over that period of time. She stated that the work she performed and the tools she used were essentially the same throughout.

The worker was unable to provide any particular explanation for the onset of her symptoms. She indicated that she had been having pain before she filed her claim, but could not say when that started. She said that she would have ignored the pain and continued working, and it was only when she started dropping things that she went to see the doctor and filed her claim.

The panel finds that the medical evidence is not definitive as to the nature of the worker's difficulties or her diagnoses. The panel is further unable to identify medical evidence which would support that conditions of carpal tunnel syndrome or epicondylitis were caused by the worker's job duties.

At the hearing, the worker described the duties she performed in the course of the day and the panel questioned her at some length with respect to those duties. When asked what duties were the worst for her hand, she said that it was everything combined. However, she attributed her difficulties particularly to using the scissors while cutting hair. The worker said that the tools she used were not particularly heavy, adding that it was just the constant motion, moving and twisting her hand that caused her problems.

Based on our review of the worker's job duties, as described and demonstrated by the worker at the hearing, the panel is unable to link the activities she was performing at work with her right hand and forearm difficulties. While it was submitted that the job was highly repetitive, the panel is not satisfied, on a balance of probabilities, that cutting hair, as described, was sufficiently repetitive and forceful to be causative of the worker's right hand issues and difficulties. The panel notes that the worker's other duties involved different movements, and is unable to relate these duties, either alone or in combination with the haircutting duties, to the worker's issues and difficulties.

The panel's general impression of the worker's job duties was that the work could be relatively constant and busy, and included a number of tasks that involved the use of the worker's hands, particularly her right hand, given that she is right-hand dominant. Overall, however, the work did not involve prolonged or sustained force and repetition that would be causative of carpal tunnel syndrome or epicondylitis. On a balance of probabilities, the panel is therefore unable to relate a diagnosis of either condition to the work duties which the worker was performing.

The panel further notes the worker's representative's position at the hearing that the worker did not have any pre-existing condition (except perhaps with respect to her ganglion cyst condition), and there is therefore no issue as to any such condition having been aggravated or enhanced.

With respect to the worker's ganglion, her representative acknowledged at the hearing that there was no medical evidence to indicate that the ganglion itself was related to or caused by the worker's job duties. The representative argued, however, that the ganglion was aggravated by the movement of the worker's hand in the performance of her work duties, and that such aggravation was therefore a compensable injury for which WCB was responsible. The panel is unable to accept that argument. In this regard, the panel notes and places weight on the treating hand surgeon's note in his January 15, 2018 report that the worker's discomfort did not correspond with the location of the ganglion as shown on the MRI.

The panel has also considered the medical literature provided by the worker's representative, but finds that it is insufficient to establish that the worker's right hand or forearm difficulties fall within the definition of an "occupational disease" under the Act. The panel is further unable to attach weight to that literature as evidence or as a basis for concluding that the worker's right hand or forearm difficulties were related to her work duties.

In conclusion, the panel acknowledges that the worker has ongoing issues or difficulties with her right hand and forearm, but is unable to connect those issues or difficulties to her workplace activities or duties.

Based on the foregoing, the panel is satisfied, on a balance of probabilities, that the worker's right hand and forearm difficulties or issues are not causally related to, or aggravated or enhanced by her work duties. The panel therefore finds that the worker did not suffer a personal injury by accident arising out of and in the course of her employment, and the claim is not acceptable.  

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
D. Neal, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 30th day of December, 2019