Decision #78/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. Date of Accident – November 1, 1995: Responsibility for their current bilateral arm difficulties as being related to the November 1, 1995 accident is not accepted; and
2. Date of Accident – April 8, 2019: The claim is not acceptable.
A teleconference hearing was held on May 18, 2021 to consider the worker's appeal.
1. Date of Accident – November 1, 1995: Whether or not responsibility should be accepted for the worker’s current bilateral arm difficulties as being related to the November 1, 1995 accident; and
2. Date of Accident – April 8, 2019: Whether or not the claim is acceptable.
1. Date of Accident – November 1, 1995: Responsibility should not be accepted for the worker’s current bilateral arm difficulties as being related to the November 1, 1995 accident; and
2. Date of Accident – April 8, 2019: The claim is not acceptable.
Date of Accident – April 8, 2019
The WCB spoke with the worker on May 8, 2019 regarding their claim. The worker advised the WCB they believed their difficulties were a recurrence of their previous WCB injuries due to the repetitive job duties with their current employer. The WCB recommended the worker submit a new WCB claim and also on May 8, 2019, the worker provided the WCB with a Worker Incident Report indicating an injury to their bilateral elbows and hands that occurred at work. The worker attributed the injuries to repetitive hand writing and typing required for their job. A Doctor’s First Report from the worker’s appointment with their family physician on May 2, 2019 was provided to the WCB. The worker reported pain in both hands, ulnar nerve numbness and bilateral elbow tendonitis to the treating physician, who examined the worker and recorded bilateral hand tenderness, numbness and pain, weak grip and provided a diagnosis of bilateral hand carpal tunnel syndrome and ulnar neuropathy. It was recommended the worker be off work for 2 to 3 weeks and referrals for an EMG, x-rays and a nerve conduction study were made. An x-ray of the worker’s hands was conducted on May 2, 2019 and indicated “There is joint space narrowing and spurring identified involving the left second and third MCP (metacarpophalangeal) joints. Mild joint space narrowing and spurring is also identified involving the right MCP joint. There is degenerative change noted involving the triscaphe articulations bilaterally more pronounced on the left. No erosive change or chondrocalcinosis is seen.” The x-ray of the worker’s right elbow also conducted on May 2, 2019, indicated “There is no joint effusion. Alignment is anatomic. No osseous abnormalities are present.”
The employer submitted an Employer’s Accident Report to the WCB on May 10, 2019 indicating a date of accident of April 8, 2019 and noting the worker did not report a specific incident for their injuries but the worker’s current arm pain/tendonitis was related to their previous WCB claim.
A report from the worker’s neurologist including the results of a June 5, 2019 nerve conduction study were received by the WCB. The treating neurologist opined the worker’s “…symptoms and physical examination findings could be in favor of bilateral lateral epicondylitis” and recommended further physiotherapy for the worker. On June 6, 2019, the worker attended for an initial physiotherapy assessment. The treating physiotherapist noted the worker’s complaints of difficulties with both their elbows, neck, upper back and tingling and numbness in both hands. It was recommended the worker remain off work until further testing was conducted.
On July 8, 2019, the worker’s WCB case manager documented the investigation into the worker’s claim to the file. The case manager noted the worker’s reporting that they had surgery on both elbows as a result of their previous WCB claim and that they continued to experience difficulties with their left elbow after the surgeries. The worker advised their case manager that due to their repetitive job duties, particularly through the last 3 years with a change in their job duties and an increase in writing and typing, their arms started to ache in approximately January 2019. At the time, they self-treated those aches with ice and monitored their activities but continued to work, discussing their complaints with their co-workers. The worker further advised their current difficulties were similar to what they experienced during their first WCB claim. The WCB asked the worker about modified duties and the worker advised the employer did not have any available.
At a follow-up appointment with their family physician on July 15, 2019, the physician noted the worker had bilateral tennis elbow and lateral epicondylitis in both arms. It was further noted that the worker was unable to type or use both hands due to those conditions and would be able to return to work with modified duties on July 22, 2019.
The worker was advised on July 17, 2019, their claim was not acceptable. The WCB advised the worker that a relationship between their current difficulties and an accident arising out of or in the course of their employment could not be established. On January 6, 2020, the worker requested reconsideration of the WCB’s decision to Review Office indicating they developed bilateral elbow difficulties as a result of a change in their work duties and continued to experience difficulties.
Review Office found on February 11, 2020, the worker’s claim was not acceptable. Review Office noted the worker’s bilateral epicondylitis was not a result of their job duties, as it was reported those job duties were varied throughout the day and did not require repetitive or forceful wrist movements, which are generally related to the development of epicondylitis. Further, Review Office found the worker reported the development of the difficulties in their elbows began in January 2019 without a specific incident or event.
Date of Accident – November 1, 1995
The worker has an accepted WCB claim for bilateral elbow injuries sustained from repetitive job duties in November 1995. The worker was diagnosed with right lateral epicondylitis and bilateral ulnar nerve compression. After undergoing left ulnar nerve neurolysis on October 29, 1996 and right ulnar nerve neurolysis on January 14, 1997, the worker reported minimal symptoms and full recovery was expected. As permanent restrictions were placed for the worker, the WCB provided vocational rehabilitation services and the worker obtained different employment with a new employer.
On July 18, 2019, the worker contacted the WCB to report a recurrence of their injuries on this claim. A copy of the WCB case manager’s investigation from the worker’s other claim file was placed to this claim. On July 22, 2019, the WCB contacted the worker to gather further information. The worker advised that they were returning to work the following day to 3 days per week, increasing to 4 days a week after that. They confirmed their right arm had improved however, their left arm was sore, particularly when attempting to grab items. The worker further confirmed they had a change in their job duties involving more writing and typing since January 2019 when they noted an increase in their symptoms.
A report was received from the worker’s treating family physician on August 12, 2019. The physician advised the worker presented to them on April 25, 2019 “…complaining of bilateral ulnar tendinitis and pain in lateral 2 fingers and numbers and left arm and forearm.” The treating family physician opined the worker’s diagnosis was of left sided ulnar neuropathy, worse on the right forearm and hand, noting improved symptoms when the worker uses an elbow brace.
The worker’s file, along with their other claim, was reviewed by a WCB medical advisor on September 4, 2019. The advisor noted the worker’s new proposed diagnosis of left lateral epicondylitis, which was not reported or present when the workplace accident occurred in November 1995, and not mentioned in the medical reporting at that time. Further, the WCB medical advisor provided left lateral epicondylitis was not an accepted diagnosis related to the initial workplace accident. As such, the WCB medical advisor opined “…a patho-anatomic basis on which to account for the newly diagnosed bilateral left > right lateral epicondylitis in relation to the November 1, 1995 workplace injury is not apparent.” On September 4, 2019, the WCB advised the worker responsibility would not be accepted for their current bilateral arm difficulties in relation to the November 1, 1995 workplace accident as a relationship between the two could not be established.
On January 8, 2020, the worker requested reconsideration of the WCB’s decision to Review Office noting their ongoing difficulties were related to their claim and they continued to experience those difficulties. Review Office found on February 11, 2020, responsibility would not be accepted for the worker’s current bilateral arm difficulties. Review Office noted the worker had continued working and participating in non-work activities for over 20 years without medical treatment or reporting any difficulties to the WCB and as such, Review Office was unable to establish a relationship between the worker’s current bilateral arm difficulties and the workplace accident of November 1, 1995.
The worker’s representative filed appeals with the Appeal Commission for both claims on December 17, 2020. A teleconference hearing was arranged for May 18, 2021.
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.
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.
(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.
WCB Policy 126.96.36.199, Pre-existing Conditions (the "Policy") addresses the issues of pre-existing conditions when administering benefits. The Policy states that:
When a worker's loss of earning capacity is caused in part by a compensable injury and in party by a non-compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.
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.
WCB Policy 44.05 Arising out of and in the Course of Employment states:
Generally, 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 Workers Compensation Act provides that when the accident arises out of employment, it will be presumed the accident occurred in the course of employment unless the contrary is proved, and when the accident occurs in the course of employment, it will be presumed that the accident arose out of employment unless the contrary is proven.
WCB Policy 188.8.131.52.10 Recurring Effects of Injuries and Illness (Recurrences) states:
When a worker makes a claim with the WCB, it will determine whether the worker is entitled to benefits and services under the Act. If the WCB decides that the worker is entitled to compensation under the Act, the WCB must next decide whether the worker has suffered a new accident or a recurrence. When a worker has returned to work following a compensable injury or illness, and subsequently suffers a further loss of earning capacity as a result of that same injury or illness, the WCB will award compensation benefits to the worker during the current loss of earning capacity. The compensation benefits to which a worker is entitled as a result of a recurrence will be based on The Workers Compensation Act in effect at the time of the original accident.
The worker was assisted by a worker advisor, who made a presentation to the panel. The worker responded to questions from the worker advisor and the panel.
The worker described changes in the way in which tasks were completed, including increased use of a tablet, sometimes while in a vehicle, followed by increased desk work when a significant part of the day involved using a computer keyboard while responding to emails. The worker advisor submitted that the scenario which best fits is that a new accident occurred which was the increase in work duties encompassing the tablet and computer use which caused left lateral epicondylitis and caused aggravation to the previously diagnosed right lateral epicondylitis.
Although an increase in computer duties could have caused a recurrence of the right lateral epicondylitis, it was acknowledged that it would be difficult to find a reoccurrence on the left since the worker was never diagnosed in 1995 with this condition. However, the worker felt that the first accident contributed to the susceptibility of further injury in both elbows.
Neither employer participated in the hearing.
In relation to the issue of whether or not the worker’s 2019 claim is acceptable, for the worker’s appeal to be successful the panel must find, on a balance of probabilities, that the worker sustained a personal injury by accident arising out of and in the course of employment. The panel is unable to make that finding, for the reasons that follow.
The worker felt that their symptoms were caused by work duties. However, there is a lack of medical support for the worker’s conclusions. In reviewing the nerve conduction study of June 5, 2019, the treating neurologist noted that there was no active median or ulnar neuropathy, with slight reduced amplitude of sensory nerve action potential on the left ulnar nerve which could be related to his previous ulnar neuropathy. The report stated that the worker’s symptoms and physical examination findings could be in favor of bilateral lateral epicondylitis and that the worker could benefit from further physiotherapy. The treating neurologist was unable to definitively state a diagnosis and there is no indication of the causation of the worker’s symptoms. As a consequence, there was no conclusive diagnosis of bilateral lateral epicondylitis.
A WCB medical advisor noted in a medical opinion dated November 12, 2019, that “Epicondylitis is a commonly occurring condition in the general public, often arising without a specific recognized trigger. There is evidence that workplace duties involving repetitive and forceful wrist movements (flexion/extension and/or supination/pronation) may be provocative. The duties described by [the worker] may be repetitive but are not forceful.”
It was the worker’s position that the symptoms were caused as a result of keyboarding and tablet use but the panel notes that the duties which the worker described were not forceful repetition and were within the worker’s restrictions. The panel accepts bi-lateral epicondylitis can be idiopathic. The panel prefers to rely on the WCB medical advisor’s opinion. The panel does not find this claim to be acceptable.
In relation to the issue of whether or not responsibility should be accepted for the worker’s current bilateral arm difficulties as being related to the November 1, 1995 accident, the panel must find, on a balance of probabilities, that the worker's current bilateral arm difficulties are causally related to the 1995 accident or the worker’s original compensable injuries. The panel is unable to make that finding, for the reasons that follow.
The worker was relatively symptom-free for over twenty years, although the worker did describe occasional flare-ups which did not require medical attention. Ergonomic modifications were made to the worker’s workstation but the worker described these as preventative in nature and were not instituted as a result of complaints. The worker had permanent restrictions in place.
The medical evidence in relation to the 1995 accident does not identify the same injury as that which the worker suffered in 2019. The worker did not experience left lateral epicondylitis as a result of the November 1, 1995, injury.
A WCB medical advisor summarized the medical evidence and concluded that “There is a new proposed diagnosis of left lateral epicondylitis. Left lateral epicondylitis was not present at the time of the initial workplace injury in 1995, was not mentioned in the medical reports as a proposed diagnosis and is not an accepted diagnosis in relation to the initial workplace injury.” The WCB medical advisor found that, in light of the medical information, a patho-anatomic basis on which to account for newly diagnosed bilateral left>right lateral epicondylitis in relation to the November 1, 1995, workplace injury was not apparent.
The panel considered the submissions of the worker but prefers the opinion of the WCB medical advisor. Accordingly, the panel can not conclude that the worker’s current bilateral arm difficulties are related to the November 1, 1995 accident.
The worker’s appeals are dismissed.
K. Gilson, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Gilson - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of June, 2021