The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A teleconference hearing was held on May 13, 2020 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a Worker Incident Report with the WCB on November 14, 2018 reporting an injury to their left elbow that they attributed to repetitive use at work, first noticed in September 2018. The worker reported lifting paper from a roll onto a machine, using their left side and taking folded bundles of sheets to place them in a pile, also with their left hand. The Employer’s Accident Report also filed with the WCB on November 14, 2018, confirmed the worker reported the incident to them on November 12, 2018 and that the worker was “…lifting heavy stock of paper…” and injured their left elbow.

In a Physiotherapy Initial Assessment received by the WCB for an appointment the worker had on November 10, 2018, the physiotherapist recorded a diagnosis of left lateral epicondylitis, noting the worker’s left wrist extension was limited, with stiffness and swelling in the left common extensors. The physiotherapist recommended the worker continue with full regular duties wearing a brace at all times.

On November 21, 2018, the worker sought treatment from their family physician. The worker described to the physician “Insidious onset of pain to left lateral elbow at work while lifting at work for 2 months…”. Upon examination, the physician reported “Left elbow: Pain elicited on active supination. Some mild tenderness on palpitation. No pain on valgus and varus stress. No decrease in strength, no swelling, no erythema, no deformity” and diagnosed left lateral epicondylitis. The physician noted the worker had been diagnosed with left lateral epicondylitis twice before, two and ten years prior and recovered both times. Treatment with physiotherapy and ice was recommended and the physician noted the worker was performing regular duties.

The WCB spoke with the worker on November 23, 2018 to discuss the claim. The worker confirmed the onset of pain in their left elbow, approximately in the middle of September 2018, with no increase in job duties. The worker noted prior issues with their left elbow approximately 10 years ago and that there was not a specific incident that caused their elbow to hurt. The worker further advised they initially treated their symptoms with pain medication and continued to work their regular hours and duties; however, after seeking physiotherapy treatment, the physiotherapist recommended filing a WCB claim for a work-related injury.

The employer confirmed to the WCB on November 27, 2018 the nature of the worker’s job duties performed over approximately 23 years and that the volume of the worker’s duties was consistent, with no overtime worked for about 6 months prior to the reported workplace accident.

On December 10, 2018, the WCB advised the worker that the claim was not acceptable as a relationship could not be established between the worker’s left elbow difficulties and an accident as defined by the WCB’s legislation. The WCB noted as well that the worker’s job duties were not consistent with the development of lateral epicondylitis.

The worker requested reconsideration of the WCB’s decision to the Appeal Commission on December 20, 2018, which request was forwarded to Review Office on the same date. On the request, the worker noted worsening symptoms with pain from their wrist to their elbow.

On February 14, 2019, Review Office determined the worker’s claim was not acceptable as it could not establish an accident occurred as set out in the WCB’s legislation and further, that the worker’s job duties were not consistent with the development of lateral epicondylitis, noting the worker had been performing those job duties for approximately 23 years, with the duties remaining consistent over that time.

The worker appealed to the Appeal Commission. A teleconference hearing was arranged for May 13, 2020. 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 interested parties for comment. On January 26, 2021, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by 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 a chance event occasioned by a physical or natural cause, as a result of which a worker is injured. The definition includes events arising out of and in the course of employment.

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. Those benefits may include wage loss benefits where there is a loss of income earning capacity arising out of the injury, as set out in s 39 of the Act, or medical aid to cure and provide relief from injury arising out of a compensable accident, as provided under s 27 of the Act.

Worker’s Position

The worker appeared in the hearing on their own behalf with the assistance of an interpreter. The worker provided an oral submission to the panel and answered questions posed by panel members.

The worker’s position is that their left elbow was injured at work while undertaking their job duties, and therefore the claim should be accepted.

The worker’s current symptoms include pain above the left elbow by the bicep muscles, along the front side of the arm. The worker described the pain as sharp and continuing since the onset of the injury in fall of 2018. At work, the worker uses an elbow brace nearly all the time but does not use the brace outside of work. The worker relies upon pain medication when working but not at home. The worker described pain that arises when they twist and turn their hand in either direction, as well as when holding something in the left hand, such as a phone. Physiotherapy was helpful but the worker discontinued treatment due to a lack of insurance coverage.

The worker indicated that they have worked with the employer since July 1985 doing the same job throughout. They noted that there used to be more work such that there was a lot of overtime required but now there is less work. The equipment and duties have not changed significantly although for approximately 15 years, the worker has had the aid of a lifting device to help with picking heavy loads from the floor. The worker noted that the job demands are variable depending upon the specific tasks being undertaken. The worker’s duties include loading paper onto a roll and removing folded product to a pallet. The bundles carried vary in weight depending upon the size of the paper. In addition to loading, lifting and bundling, the worker also assists others in their work as required from time to time.

In terms of other activities, the worker indicated that they are not involved in any sports or hobbies. After work hours are spent relaxing or walking. The worker advised that they use their right hand for writing but are otherwise left-hand dominant.

The worker described to the panel a previous injury of their lower back, elbow and wrist that occurred as a result of a fall from a ladder in 2012. Since that time, until this WCB claim, the worker stated they had no problems with their elbow.

The worker confirmed that they have not missed any work as a result of this injury and that the claim relates only to a request for medical aid.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue for the panel to determine is whether or not the worker’s claim is acceptable. In order to find that the claim is acceptable the panel would have to determine that the worker was injured as a result of an accident that arose out of and in the course of employment. As detailed in the reasons that follow, the panel was not able to make such a finding on the basis of the evidence before it.

The Act defines an accident as a chance event occasioned by a physical or natural cause, as a result of which a worker is injured. This includes an injury or illness that arises out of and in the course of employment. Generally, an injury or illness can be said to have “arisen out of employment” if the activity giving rise to the injury is causally connected to 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.

In considering the worker’s claim, the panel considered the evidence provided by the worker as to their specific work duties which involve loading, lifting and bundling paper of varying sizes and weights as well as assisting other employees in their jobs as needed. The panel noted the worker’s testimony that there is variety in job duties and demands, depending on the specific tasks being undertaken. The worker provided the WCB with a brief video submission showing the nature of their job duties. The panel reviewed this video and noted that it confirms the worker’s description of their job duties as variable in that the worker appears to be engaged in multiple tasks at an unhurried pace, including removing stacks of printed paper from a machine and placing on a pallet and loading printed pages from a pallet and placing on a machine, using both arms in equal measure.

The panel noted that the employer confirmed to the WCB that the worker had, at the time of the accident claim, been employed and undertaking these duties for some 23 years. The employer also confirmed that there was no increase in the worker’s job duties and that there had been no overtime hours during the six-month period prior. Further, the volume of the worker’s duties was consistent and the employer advised that each stack of paper the worker moved would weigh approximately 10-15 pounds.

The panel also reviewed and considered the medical reporting on file. The worker’s treating family physician noted that the worker had previously been diagnosed with lateral epicondylitis approximately 10 years earlier, and also 2 years earlier. The Doctor First Report of November 21, 2018 sets out the mechanism of injury as “Insidious onset of pain to left lateral elbow at work while lifting at work for two months”. The physician’s chart notes requested by the panel indicate the worker first sought treatment for sharp pain in their left elbow on November 21, 2018 and at that time stated that the pain arose in mid-September and related it to work. The physician diagnosed lateral epicondylitis and prescribed rest, ice and physiotherapy. The chart note for December 21, 2018 again references the worker’s history of left lateral epicondylitis and noted the worker was finding physiotherapy helpful. The next chart note, of April 30, 2019 records that the worker’s continuing upper left arm pain was not at that time consistent with the diagnosis of lateral epicondylitis.

The physiotherapy initial assessment report of November 13, 2018 noted the worker described “gradual onset” of left elbow pain related to “[g]rabbing bundles of paper to place on & remove from press”. The physiotherapist recommended treatment over a period of 5 weeks as well as home exercises. The worker saw another physiotherapist in spring 2019, and a physiotherapy chart note dated May 15, 2019 indicated that the worker was treated with physiotherapy “7-8 times in Nov/Dec 2018 but did not find it helpful”. Further, the worker reported that they did not do the recommended exercises. The physiotherapy chart note dated May 28, 2019 records that the worker’s symptoms have not improved and questions the worker’s interest in active treatment and compliance with home exercises.

As noted in the WCB decision letter of December 7, 2018 as well as in the decision of the Review Office of February 14, 2019, a diagnosis of lateral epicondylitis may arise out of repetitive, forceful movement such as twisting, pulling and pushing motions with the wrist, or from a traumatic injury to the elbow, but also can arise without any specific cause, or insidiously.

Here, there is no evidence of any traumatic injury to the worker’s left elbow, and the evidence of the nature and kind of duties undertaken by the worker in the usual course does not support the worker’s position that the diagnosis of lateral epicondylitis arose out of undertaking their regular work duties. The video evidence in particular does not reveal the kind of forceful and repetitive motions that might be expected to result in development of this diagnosis. Further, there is evidence of previous diagnoses of this condition in the worker’s left elbow, suggesting that the worker’s condition is pre-existing, rather than a new condition arising out of the worker’s duties in the workplace in or after September 2018.

The panel also noted that while the worker initially claimed the injury related to work duties undertaken in September 2018, there was no report of injury or accident to the employer or to the WCB until some two months later.

On the basis of the totality of evidence reviewed and on the standard of a balance of probabilities, the panel finds that the diagnosis of left lateral epicondylitis cannot be related to the worker’s activities arising out of and in the course of their employment. Therefore, we do not find that the worker was injured as a result of an accident as defined by the Act. The worker’s claim is not acceptable.

Panel Members

K. Dyck, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of February, 2021