Decision #63/20 - 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 January 22, 2020 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 July 5, 2018 reporting injury to his right shoulder and elbow on April 18, 2018. In the report, the worker noted that his duties included “…heavy lifting, shoveling snow, sweeping, cleaning. I cut grass with a heavy machine. I move furniture and wax floors”. He set out that since mid-April 2018, his shoulder and elbow were getting worse, with shooting pain from his neck to his hand. The employer submitted the Employer’s Accident Report to the WCB on July 10, 2018 indicating the worker’s report of a “…tennis elbow and shoulder problem stemming back to April 18, 2018” but noting he reported no incident until June 25, 2018.
On July 5, 2018, the worker saw his family physician and reported that he does a lot of repetitive work and first noted onset of pain in April. The family physician diagnosed a cervical sprain to the worker’s right shoulder, arm and elbow, referred him for x-rays and physiotherapy and he remained off work. The cervical spine x-ray revealed “…mild multilevel spurring…” in C-5 to C-7 levels.
The worker was assessed for physiotherapy on July 6, 2018. At that time, he described his injury as a progressive increase of right arm pain with repetitive job duties. He noted constant pain, mostly in his right elbow that would shoot up and down his arm with numbness and tingling in his fingers. The physiotherapist reported positive testing for shoulder impingement and lateral epicondylitis with tenderness and inflammation over the common extensor tendon. The physiotherapist diagnosed a right shoulder and elbow repetitive strain.
In initial discussions with the WCB on July 20, 2018, the worker confirmed his job duties and noted that during the summer months, there was an increase in those duties. He further confirmed experiencing an increase in his symptoms since April 2018.
On July 26, 2018, the WCB advised the worker that his claim was not acceptable. The WCB determined that a relationship between the worker’s current symptoms and his job duties could not be established, noting the worker appeared to have a lot of variety in his job duties, and as such, there was not sufficient repetition to cause the worker’s difficulties.
The report from a consult with a sports medicine specialist on September 6, 2018 indicates the worker had full range of motion with a tender lateral epicondyle, and reported pain with moderate gripping. The sport medicine specialist diagnosed lateral epicondylitis and recommended bracing and modifications to the use of the worker’s arm.
On September 26, 2018, the WCB advised the worker that the new medical information had been reviewed; however, the decision that his claim was not acceptable would not change.
The worker requested reconsideration to Review Office on October 3, 2018. Accompanying his request, the worker provided more detailed information about his job duties and how these duties involved repetitive use of his wrist.
On November 20, 2018, Review Office upheld the decision that the worker’s claim was not acceptable, acknowledging that some of the worker’s job duties were repetitive and forceful, but finding those were not sufficiently forceful or repetitive to have caused lateral epicondylitis. Review Office found that the worker delayed in reporting his difficulties to his employer and in seeking medical treatment for those difficulties and, as a result, could not establish a causal relationship between the worker’s job duties and his current difficulties.
The worker’s representative filed an appeal with the Appeal Commission on October 24, 2019. An oral hearing was arranged.
Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was received and forwarded to the interested parties for comment. On May 12, 2020, the appeal panel met again 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 provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.
The Act sets out the definition of an accident in s 1(1) 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,
(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….
When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to benefits under s 4(1) of the Act.
The WCB has established Policy 44.05, Arising Out of and in the Course of Employment which sets out that an injury or illness is said to have “arisen out of employment” if the activity giving rise to it is causally connected to the employment—that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.
The worker was represented in the hearing by an advocate, who made submissions on the worker’s behalf. The worker provided answers to questions put to him by his advocate and by members of the appeal panel.
The worker’s position is that the symptoms in his right arm and shoulder that he began to experience in the spring of 2018 were the result of undertaking repetitive duties in the course of his work with the employer. When the symptoms increased, the worker reported injury to the employer and sought medical attention. The worker’s position is that the injury arose out of and in the course of his job duties and therefore the claim should be acceptable.
The worker’s advocate noted that there is no evidence of any specific precipitating event, but that the injury developed over time as the worker continued to undertake his repetitive job duties. The advocate noted the worker’s diagnosis of lateral epicondylitis is known to develop gradually.
The worker’s delay in seeking medical attention and reporting injury to the employer, the advocate explained, is as a result of a gradual development of the injury due to a series of repetitive micro-traumas that worsened over time. As well, the worker’s pain symptoms initially would decrease when he was not at work. Ultimately, the symptoms increased to an extent that the worker sought medical attention on June 26, 2018, resulting in the physician’s note of June 27, 2018 that set out the worker was unable to work until evaluated by a specialist for lateral epicondylitis and upper extremity pain.
The worker’s advocate noted that the sport medicine physician consulted by the worker on September 6, 2018 confirmed that the worker’s presentation was consistent with a diagnosis of lateral epicondylopathy, and further, that the daily demands of the worker’s employment could expose him to the high degree of repetitive load that would place the worker at greater risk of developing that diagnosis.
The worker responded to questions from the appeal panel and provided a detailed overview of his daily job duties, including maintenance of an onsite sewage plant. He described this task as requiring approximately 7-10 hours per week of duties including scrubbing, descaling and general cleaning. In the further response provided by the worker to information the employer submitted subsequent to the hearing, the worker noted that these duties encompassed one of his three key areas of responsibility.
In sum, the worker’s position is that as a result of the repetitive and forceful movements required as part of his ongoing job duties, he developed an injury to his right arm and shoulder. Because the injury arose out of and in the course of his work, the claim should be accepted.
The employer did not participate in the hearing but did provide further information as to the worker’s particular job duties in response to the appeal panel’s request of it, after the hearing concluded.
The issue for determination is whether or not the claim is acceptable. In order to find in favour of the worker, the panel must determine that the worker was injured as a result of an accident arising out of and in the course of his employment. The panel was able to make that finding, as outlined in the reasons that follow.
The definition of accident under the Act requires there to be evidence of a chance event, including an 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. Additionally, the definition requires that the worker be injured as a result of such an event. Where an accident resulting in injury has occurred arising out of and in the course of employment, the claim is acceptable.
In this claim, the worker’s position is that as a result of repetitive and forceful actions undertaken arising out of and in the course of his employment, he developed lateral epicondylitis in his right arm with symptoms first noted as arising in April 2018. The worker outlined to the WCB and in considerable detail to the panel in the hearing, the range and kind of duties he undertakes on a regular basis in his job.
The panel requested and obtained from the employer an outline of the worker’s job duties that included responsibility for maintenance of the onsite sewage treatment plant. In addition to the typical duties associated with the worker’s job, the worker described to members of the panel his daily responsibilities relating to cleaning the plant. These duties included brushing, scraping and descaling tasks that required the worker to forcefully and repetitively move his right arm on a daily basis, for 7.5-10.5 hours weekly, according to the worker’s testimony.
The employer, through its human resources officer, suggested that the worker’s position required only that he conduct a visual inspection of the sewage treatment plant each second day, and a weekly inspection of the mechanical aspects of the plant, requiring approximately 1.5 hours per week. The information provided by the employer confirms that the worker’s areas of responsibility included the treatment facility, but otherwise is inconsistent with the testimony of the worker in terms of the degree and nature of those responsibilities. Where there are contradictions in the information provided to the panel, the panel prefers to rely upon the testimony of the worker as to the duties he undertook on a daily basis in the course of his employment.
The medical reports on file support the worker’s position that as a result of the forceful and repetitive duties he undertook in the course of his employment, he developed symptoms in his right arm, including pain and tension. The initial physiotherapy assessment indicates diagnosis of right shoulder and elbow repetitive strain based upon the objective findings and the worker’s subjective report. The physiotherapist, in a further report dated September 19, 2018 notes the belief that the worker’s right elbow and arm pain “…began from repetitive use at work.”
Further, the treating sport medicine physician stated in a report dated October 17, 2019 that:
It is reasonable to assume, based on the demands noted above, the duties [the worker] is required to perform, on a daily basis, in his capacity of a [position title], could expose the elbow, forearm, common extensor tendon and lateral epicondyle to a high degree of repetitive loads, especially the dominant arm….[I]t appears the physical demands of his work…exceeds the physical demands he is exposed to when not working. Based on this I’m inclined to disagree with the Review Office and opine the demands of his work duties do involve a high degree of forceful movements required to cause lateral epicondylitis.
The medical findings also indicate that the worker had pre-existing ECRB chronic degenerative tissue, although there is no evidence to indicate that the pre-existing condition was aggravated or enhanced as a result of the worker’s workplace duties.
The worker’s evidence is that for approximately two consecutive hours daily, his job duties required that he engage in repetitive and forceful activities with his dominant right arm, in particular. The panel accepts the opinions of the worker’s treating medical professionals that such a mechanism of repetitive, forceful motion is sufficient to cause the diagnosed condition of lateral epicondylitis.
On the basis of the evidence before us as to repetitive and forceful nature of the worker’s specific daily job duties in the sewage treatment facility and the medical findings, the panel is satisfied on a balance of probabilities that the worker was injured as a result of and in the course of completing his ongoing job duties. The claim is therefore acceptable.
The worker’s appeal is allowed.
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 14th day of June, 2020