Decision #03/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on July 18, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
The worker filed a Worker Incident Report with the WCB on March 13, 2018 indicating he injured both his thumbs at work with an incident date of October 12, 2017. The worker reported that his injury started off as pain in his thumbs which increased over time with some swelling in his thumbs. The worker said he first noticed his symptoms approximately one year earlier, and that his thumbs hurt more on the weekends after a full week of work.
The worker attended an initial assessment with his family physician on March 12, 2018. He reported working with his hands for years using a knife, and that he had constant pain and deformities at the base of his thumbs on both hands. The physician noted the worker is left hand dominant and that the worker indicated his left thumb was worse than his right. The physician diagnosed the worker with "work related OA (osteoarthritis)" and referred him for x-rays. The results of the x-rays of the worker's right and left hands taken March 12, 2018 indicated osteoarthritis.
In a discussion with a WCB adjudicator on March 20, 2018, the worker advised that he had been "…experiencing discomfort and pain in both thumbs for quite some time." He advised that the pain had become worse over the last "couple of months" and that he just worked through the pain, taking an occasional pain reliever or applying ice when needed. The worker also noted his thumbs were worse over the weekend when he was at home. He indicated his right thumb was worse than his left and confirmed he is left hand dominant. The worker related the cause of his pain to years of repetitive job duties. He confirmed he had been employed with the employer for 31 years. He said the employer offered him modified duties when he advised the employer of his difficulties, but he had refused those duties pending receipt of the x ray results.
On April 4, 2018, the worker attended a follow-up appointment with his family physician, who then referred him to a hand surgeon. On April 7, 2018, a WCB medical advisor provided a medical opinion in response to a request from the WCB adjudicator, in which the medical advisor noted that osteoarthritis of the thumb is a degenerative condition, with the most common risk factor being age. The WCB medical advisor also noted that in terms of occupational exposure, there was insufficient scientific evidence in support of any anatomical movement in its development, but that "…it has commonly been considered that years of exposure to regular forceful grip over most work days may contribute to its development." The medical advisor went on to opine that given the worker's claim was for a bilateral condition, if he did not perform similar duties with both hands, the osteoarthritis was likely to be age-related.
On April 17, 2018, the WCB's Compensation Services advised the worker that his claim had been accepted for bilateral osteoarthritis in both his thumbs.
On May 25, 2018, the employer requested that Review Office reconsider Compensation Services' decision, as they disputed that the worker's condition was caused by his job duties.
On June 21, 2018, Review Office determined that the worker's claim was not acceptable, as they were unable to establish a link between the worker's job duties and his bilateral thumb difficulties. Review Office found that the worker would have used his hands and thumbs in different ways while performing his job duties, yet his injuries were the same bilaterally. Review Office noted that the worker's non-dominant hand which did not hold the knife was reportedly worse, and the worker had indicated that his condition was worse when he was not at work and was not using his hands. Review Office further noted that the worker had worked in the same or a similar job with the use of his hands for decades and had only recently developed what is commonly seen as age-related joint degeneration. Review Office accepted the opinion of the WCB medical advisor and found that the evidence supported the worker's condition was a disease of life and not the result of a hazard of his employment.
On January 22, 2019, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the worker for comment. On November 21, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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.
Subsections 1(1) (the definition of "accident") and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered a personal injury by accident arising out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.
The WCB's Board of Directors has established WCB Policy 188.8.131.52, Pre-existing Conditions (the "Policy") which deals with issues involving pre-existing conditions.
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.
The worker was self-represented. The worker made an oral presentation at the hearing and responded to questions from the panel.
The worker's position was that his bilateral thumb difficulties were caused by his repetitive job duties and his claim is acceptable.
The worker stated that he worked for the employer for over 32 years, 27 of which were spent in a particular position where he used a knife to carry out his job duties. The worker attributed the difficulties with his thumbs to the repetitive use of a knife in the performance of his duties over those 27 years. The worker noted that in the performance of those duties, he was constantly pulling every day, which resulted in his hands being sore.
The worker said it was the repetitive nature of his job which caused his injury, not his age. He submitted that although his doctor had indicated he had arthritis, his difficulties were not due to arthritis, since he had no pain when he was not working. The worker said his thumb pain and difficulties were all caused by his work duties using a knife.
The worker submitted that the people who denied his claim had no idea what his job entailed, and were only relying on his age in making their decision. He noted that his fellow workers who performed the same duties as he did have the same problems due to the nature of their work.
The worker advised that he had surgery on his right hand on November 7, 2018, where the surgeon removed a small bone which was sticking out the back of his hand and attached a tendon. He stated that as a result, his right hand has never been better. Following the surgery, the employer put him on light duties where he remained until he retired in March 2019. He said his left thumb stopped hurting once he stopped performing his previous duties using the knife, and his doctor told him he would not have to have an operation on that thumb if it was not painful. The worker stated he has had no pain in either hand since shortly after his surgery and his move to light duties and subsequent retirement.
The worker noted that he had prepared a list of his doctors' appointments, and stated that all he was looking for was coverage of his lost wages and mileage to attend those appointments.
The employer did not participate in the appeal.
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's bilateral thumb conditions or difficulties were causally related to the performance of his job duties. The panel is unable to make that finding.
The panel finds that the medical evidence shows that the worker has degenerative osteoarthritis and that his bilateral thumb conditions were not caused by his job duties. In arriving at that conclusion, the panel places weight on the report from the March 12, 2018 x-ray of the worker's right and left hands, on file, where the stated impression was "Osteoarthritis."
The panel also places significant weight on the following medical reports which were provided subsequent to the hearing in response to a request from the panel:
• The report of a further x-ray of the worker's "bilateral hands" taken October 4, 2018, where the stated findings/impression were that "On the right, there are advanced degenerative changes noted at the first carpal-metacarpal joint. Mild degenerative changes are noted at the first metacarpophalangeal joint…" and "On the left, there are mild degenerative changes at the first carpal-metacarpal joint and moderate degenerative changes at the first metacarpophalangeal joint…";
• The October 4, 2018 consult report from the worker's treating hand surgeon, who stated that the worker was "…presenting with bilateral thumb CMC [carpometacarpal] arthritis" and that "Given the severity of the right hand symptoms, the [worker] is interested in undergoing treatment for his right thumb CMC arthritis. We have discussed the procedure of removing the trapezium and reconstructing the joint using the flexor carpi radialis tendon…[Worker] is interested in going ahead with surgery…";
• The Operative Note relating to the November 7, 2018 surgery on the worker's right hand, which identified the procedures performed as "right trapeziectomy" and "Right flexor carpi radialis abductor pollicis longus tendon transfer with a suspensionplasty" and the pre-operative and postoperative diagnoses as "Right severe basal thumb arthritis."
The panel notes that in response to questions at the hearing, the worker said his treating surgeon had told him his injuries were due to arthritis. The worker said that although his surgeon was probably one of the best doctors in this area and still swears it is arthritis, he did not agree "…because arthritis is associated with pain" and "I've had no problem with my thumbs since I quit working." The worker stated that he had asked his surgeon to write a report saying that it is not arthritis, but the surgeon would not do so. He said the surgeon said he would still write a letter of recommendation if the worker wanted him to, but he told the surgeon not to bother "because it can't be arthritis." The worker further indicated that his surgeon was treating him for the bone sticking out of his hand; that "…he was treating the arthritis. He told me he can remove the arthritis out of my thumbs." The worker noted that his right thumb was perfect after the surgery and physiotherapy, and that his left thumb stopped hurting when he stopped performing the knife duties.
The panel also places weight on the fact that the worker's condition is bilateral, which in itself suggests a non-work related etiology.
With respect to the duties themselves, the panel notes that the worker has attributed his injuries to the duties he performed for a total of 27 years, using a knife. The worker indicated at the hearing that he performed those duties through to 2003, then again from 2007 to the time of his surgery in 2018. The worker described his duties and responded to questions from the panel with respect to those duties. Having carefully considered the worker's description of his duties, the panel is unable to find that they would have resulted in the development of his bilateral thumb conditions.
In this regard, the panel finds that the worker's duties involved different movements with his right and left hands. The evidence indicates that the worker's right thumb was more symptomatic than his left thumb, even though he is left hand dominant and would have been holding the knife and cutting with his left hand. The worker said he really did not know why his right thumb was worse, but suggested it could be from steady pulling, or gripping and steadying product with his hand as it came down the line. Asked whether he was using much force with his right hand when doing that work, he said that it was "…more just repetitive work is all, it's just from the repetitive work….Everything is coming so fast, you're pulling steady."
The worker indicated that there was no change in his job duties over the years with respect to the position where he was using the knife. When asked when he started to notice there was something wrong with his thumbs, the worker said that they were getting sore a couple of years before he put the claim in, but he kept doing the job.
The worker subsequently said that he could have maybe put the claim in long ago, but he "just didn't bother." He said his hands were worse in the last two years, and he reported his injuries when they really started bothering him and he wanted something done. The panel notes that the Worker Incident Report indicates the worker first reported his injuries to the employer on October 12, 2017, but he did not see his doctor with respect to his injuries or report the claim to the WCB until approximately five months later.
In conclusion, the panel notes that while the worker's thumbs may have been symptomatic or hurting at work, we are unable to find that the worker's injuries or conditions were caused by or causally related to his work. The panel further notes that in arriving at our decision, we have also considered the matter of aggravation or enhancement, but are unable to find, based on the evidence which is before us, that the worker's job duties aggravated or enhanced a pre-existing condition.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's bilateral thumb conditions or difficulties were not causally related to the performance of his job duties. The worker's claim is therefore not acceptable.
The worker's appeal is dismissed.
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 14th day of January, 2020