Decision #85/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A teleconference hearing was held on June 23, 2020 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
The worker filed a Worker Incident Report with the WCB on April 15, 2019 indicating that he injured his right wrist in an incident at work on April 10, 2019 that he reported to his employer on April 11, 2019 and sought medical treatment. He described:
3 – 4 hours into my shift I noticed pain and tightness on the outside of my right wrist with rotation. Was mild to moderate at this point.
I can’t recall one moment where I did something.
On April 11, 2019, the worker attended a walk-in clinic for treatment. He reported to the treating physician that he had right wrist pain “…after a night shift work (sic)” and pain when twisting his wrist or lifting. The physician noted no swelling, redness or weakness and tenderness in supination. There was no diagnosis provided but it was recommended that the worker use his right wrist less when lifting for two weeks.
At an initial physiotherapy assessment on April 18, 2019, the worker was diagnosed with wrist tendinitis/tenosynovitis. The worker described checking equipment in the truck and feeling pain in his wrist 2 or 3 hours later and noted “No specific MOI (mechanism of injury).” Restrictions of no pushing, pulling, lifting greater than 5 pounds with the right hand, can perform sedentary desk job but needs frequent change in position, rests in between tasks were recommended for two weeks.
The worker discussed the claim with the WCB on April 25, 2019. He reported working a night shift on April 10, 2019, with the shift ending on April 11, 2019. He advised that he started his shift by checking the truck and the equipment on the truck. The worker further reported that he started having pain in his right wrist about 3 to 4 hours into his shift. He advised that he returned to work with modified duties on April 23, 2019 on a gradual basis.
On April 25, 2019, the worker’s file was reviewed by a WCB medical advisor. The WCB medical advisor noted there was no diagnosis provided by the physician after the worker’s April 11, 2019 examination and the physiotherapist provided a diagnosis of tendonitis/tenosynovitis after his April 18, 2019 assessment. The WCB medical advisor opined that “Tendonitis/tenosynovitis typically develop in relation to an episode of overuse or repetitive and forceful use of the joint/limb.” However, it was further noted that an “…incident, injury, activity, or influence…” likely to cause an injury to the worker’s wrist or hand was not reported and a diagnosis for the worker’s reported symptoms had not been determined.
In a further discussion with his WCB adjudicator on May 7, 2019 the worker advised he was not attributing his injury to repetitive job duties and recalled that there was a moment when he was checking the equipment on the truck when he felt a stretch in his right wrist, which he reported to his supervisor. He noted that some of the bags of equipment weighed between 20 and 25 pounds. Also on May 7, 2019, the WCB adjudicator spoke to the worker’s supervisor who confirmed that the worker advised her on April 10, 2019 that he injured his wrist lifting an equipment bag. The supervisor confirmed that she had no concerns with the worker’s reported mechanism of injury and that it was possible to suffer an injury when checking the equipment if not careful.
On April 30, 2019, the worker was advised by the WCB that his claim was not acceptable as it could not be established that an accident occurred as a direct result of his work duties.
The worker requested reconsideration of the WCB’s decision to Review Office on June 12, 2019. On July 31, 2019, the employer’s representative provided a submission in support of the WCB’s decision to deny the worker’s claim, a copy of which was provided to the worker on August 1, 2019. The worker provided a response on August 11, 2019.
Review Office determined the worker’s claim was not acceptable on August 21, 2019. Review Office placed weight on the information provided closest in time to the workplace accident and noted that the worker’s initial report of the accident indicated he could not recall an incident that caused the onset of his wrist pain. The employer’s report also indicated the worker did not report a specific incident at the time of the equipment check, only 3 to 4 hours later. Additionally, the initial physician’s report indicated the worker experienced right wrist pain after a night shift and the treating physiotherapist stated the wrist pain started 3 to 4 hours after an equipment check with no specific incident noted. Review Office found that while the worker was at work when he experienced the onset of his right wrist pain, it could not be established that an injury occurred as a result of his job duties or an incident at work.
The worker filed an appeal with the Appeal Commission on August 23, 2019. A teleconference hearing was arranged for June 23. 2020.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations, and the policies established by 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.
Subsection 1(1) of the Act defines “accident” as follows:
“accident” means a chance event occasioned by a physical or natural cause; and includes
(a) a willful and intention 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.
The Worker’s Position:
The worker was represented by a worker advisor. It was the worker’s position that the claim should be accepted.
In the worker’s view, the WCB had placed too much reliance on the fact that the worker was unable to identify the precise moment when he injured his wrist. Although the worker acknowledged that he could not point to the exact time or the exact movement which caused the injury, he remains convinced that the injury occurred while at work. In support of this view, he noted that he arrived at the start of his shift with no issues with his wrist. He had no reduction in range of motion, no pain, and no weakness. During the course of his shift, he was required to complete an equipment check which involved, among other things, manipulating heavy equipment bags, oxygen bags, and trauma bags and moving them from their shelves in the truck and then returning them to their shelves. Within 3 hours of completing the equipment check, he noted moderate pain, weakness and a reduced range of motion, all of which grew progressively worse during the course of his shift.
The worker added that his supervisor concurred that it was possible that he could have been injured during the equipment check and she was not disputing the mechanism of injury.
As far as questions about the diagnosis were concerned, the worker states that he was initially unable to obtain an appointment with his family physician within a reasonable time after the injury and therefore attended a walk-in clinic. The worker says that the walk-in clinic physician performed only a cursory examination. Although the clinic physician did not record a diagnosis, he was advised at the time that he had tendonitis/tenosynovitis and he was referred to physiotherapy.
The physiotherapist, in turn, did not complete her initial assessment until after treatment had already been initiated and he had started to show improvement. In the worker’s view, this explained why the physiotherapist’s notes did not note symptoms consistent with the diagnosis and did not reflect a more severe injury.
The worker further submitted that, in his view, undue reliance was being placed on the language he used in making his claim and the fact that he was honest when he acknowledged that he could not state the precise moment when the injury occurred. Just because he was unable to identify the precise moment during his shift when he was injured does not mean that it did not occur during his shift. In the circumstances, his claim should be accepted.
The Employer’s Position:
The employer was represented by an employer advocate.
It was the employer’s position that the Review Office decision should be upheld. The employer agreed with the WCB adjudicator’s position that based on the lack of a mechanism of injury, medical reports and the opinion of the WCB medical advisor, the claim was not acceptable.
The employer noted that the worker provided a consistent account of his injury to his employer. He described having checked the truck and the equipment in the truck during his shift with no noticeable injury. The employer says that the worker then speculated that the injury might have occurred while he was manipulating the equipment bags, oxygen bags, trauma bags or the stretcher itself. He could not, however, point to the exact moment when the injury occurred.
In addition to the absence of an identifiable mechanism of injury identified by the worker, the worker’s treating physician did not provide a mechanism of injury or diagnosis. The only diagnosis provided was that of the physiotherapist. Although it was the physiotherapist’s opinion that the worker suffered from tendonitis/tenosynovitis, the employer noted that the examination by the physiotherapist did not note findings consistent with the diagnosis.
In the circumstances, the employer submitted that the worker failed to establish an injury arising out of and in the course of employment and the appeal should therefore be dismissed.
The issue before the panel is whether the claim is acceptable. 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 his employment. The panel is unable to make that finding, for the reasons that follow.
Based on a review of the evidence before us, including both the evidence on the file and the evidence presented at the hearing, the panel is not satisfied that, on a balance of probabilities, the worker suffered a workplace injury to his wrist which arose out of, or occurred during, the course of his employment.
As the worker acknowledged, he was unable to recall any one moment when he did something that caused injury in his wrist. He did, however, note some pain in his wrist either during the course of his shift or at the end of his shift.
The initial physician who saw the worker did not make a diagnosis but did refer the worker to physiotherapy. The physiotherapist diagnosed tendonitis/tenosynovitis. Sometime later, the worker attended his family physician who diagnosed a strain injury to his right wrist. The WCB medical officer who reviewed the file noted that the physiotherapist’s notes do not contain examination findings consistent with a diagnosis of tendonitis/tenosynovitis. He further noted that tendonitis/synovitis typically develops in relation to either overuse/repetitive use or an incident of forceful use of the joint/limb. In this case, neither cause for the diagnosis is apparent on the facts of this case.
The issue of a clear diagnosis aside, the panel does not dispute that the worker suffered some form of injury to his wrist. The issue is whether the injury occurred during the course of employment. In his initial report, the worker stated that he noticed pain 2-3 hours into his shift. He also stated that he felt pain while unloading a stretcher during call but is not certain when or how the pain arose and attributes the cause to the handling of some of the bags and/or equipment during the baggage check earlier in the shift.
In the panel’s view, the fact that the worker cannot describe the exact moment when the injury occurred is not fatal to his claim. The issue is not the exact moment, but the lack of what the panel would consider a causal relationship between the work activity of the evening and the injury in question. More specifically, the panel notes that there does not appear to be any activity that can reasonably be attributed to the workplace as having caused the injury and the panel cannot identify a specific event that would have caused any kind of wrist injury.
In the absence of any causal connection, or a specific event that would have caused a wrist injury, it would appear that the injury occurred coincidentally with workplace activity, but not because of it. Consequently, and on a balance of probabilities, the panel is therefore unable to find that the worker sustained an injury as a result of an accident arising out of or in the course of employment.
As the panel does not find that the evidence establishes that the worker was injured in the course of his employment, the panel is unable to find that an accident, as defined by the Act, occurred.
In the circumstances, the panel finds that the claim is not acceptable. The appeal is dismissed.
K. Wittman, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Wittman - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of August, 2020