The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claims are not acceptable. A videoconference hearing was held on April 29, 2021 to consider the worker's appeal.

Issue

Whether or not the claims are acceptable.

Decision

The claims are acceptable.

Background

The worker filed a Worker Incident Report with the WCB on March 2, 2020 indicating an injury to their right and left elbows from an incident that occurred on February 12, 2020. The worker reported performing different job duties than normal that involved pulling on a lever with force and noted their right elbow got worse after approximately a week.

The worker sought medical treatment on February 27, 2020 reporting pain with movement and lifting weight. The treating physician found the worker had tenderness in their right lateral epicondyle and pain with pronation and diagnosed the worker with tennis elbow. Restrictions of avoid repetitive movements and avoiding lifting weight greater than 3 kilograms above waist line were recommended for two weeks. At an initial physiotherapy assessment on February 28, 2020, the worker was diagnosed with right greater than left lateral epicondylitis and a Functional Abilities Form was completed.

On March 10, 2020, the WCB contacted the worker to discuss their claim. The worker confirmed that on February 12, 2020 and February 13, 2020, they were performing different job duties than they normally perform and were not given training. The worker noted one of those duties involved pulling a lever with force, which they were not aware was done in a different manner. While attempting to pull the lever, the worker first noticed soreness then increasing pain in their right then left elbows. The worker further advised they had not initially reported the incident as it was not hindering their ability to work at first. The WCB recommended the worker file a new claim for a cumulative injury that occurred on February 12, 2020 and February 13, 2020 and a second WCB claim was started. On March 11, 2020, the worker was advised their bilateral wrist difficulties could not be related to a specific incident occurring at work on February 12, 2020 and their claim was not acceptable.

The worker filed their second claim with the WCB on March 10, 2020. The claim was for an injury to their right and left elbows that occurred on February 12, 2020. The worker again reported performing job duties they do not normally perform involving repeated attempts to loosen a trailer by pulling a lever. The worker noted increasing pain in the week following and they reported the incident to the employer on February 26, 2020 and sought medical treatment on February 27, 2020, where they were diagnosed with tennis elbow as noted on the worker’s first WCB claim. The WCB spoke with the worker on March 11, 2020, who confirmed the information on the Worker Incident Report. The worker further confirmed they were performing modified duties offered by the employer on March 5, 2011. Also on March 11, 2020, the worker’s treating physiotherapist contacted the WCB to confirm the worker’s diagnosis of bilateral epicondylitis.

Additional information was gathered from the worker and the worker’s supervisor including a description of the worker’s normal job duties and those performed on February 12, 2020 and February 13, 2020. The worker’s supervisor advised the WCB on April 7, 2020, the worker was asked to perform different duties than they normally perform on February 12, 2020 but returned to their regular duties on February 13, 2020. It was noted the duties the worker was asked to perform on February 12, 2020 were duties they were originally hired to perform for the employer but had changed positions in January 2020. On April 8, 2020, the WCB advised the worker a causal relationship between their bilateral elbow difficulties and the job duties performed on February 12, 2020 could not be established and their second claim was not acceptable.

The worker was seen by an orthopedic specialist on April 1, 2020, a copy of the report was provided to the WCB on April 17, 2020. On examining the worker, the specialist noted no swelling, erythema, bruising, scarring, deformity or abrasion and no atrophy but noted tenderness on the worker’s lateral epicondyle. Muscle and instability testing was indicated to be normal. The specialist diagnosed the worker with right elbow pain due to lateral epicondylopathy “…most likely due to over use.” At a follow-up appointment on April 16, 2020, the specialist provided an opinion that the worker’s diagnosed lateral epicondylopathy “…could have been caused by the mentioned injury on February 12/2020.” The new medical information was reviewed by a WCB medical advisor on April 21, 2020 who opined that “…duties involving sustained forceful and repetitive wrist movements (or resisted movements) of flexion or extension, or supination/pronation may contribute to the development of the condition. A direct blow to the area of the epicondyle may also result in the condition. In the presence of epicondylitis of whatever cause, performance of work duties involving wrist movements or loading will provoke symptoms.” It was noted there was no evidence on file to indicate the worker had pre-existing epicondylitis. On April 22, 2020, the WCB advised the worker the additional medical information was reviewed, however, there would be no change to the earlier decision the claim was not acceptable.

The worker requested reconsideration of the WCB’s decision on both claims to Review Office on April 29, 2020 and submitted a chronology of their claim along with additional medical information from a treating physician and physiotherapist, supporting their claim that they developed lateral epicondylitis as a result of job duties performed on February 12, 2020.

On June 16, 2020, Review Office determined both of the worker’s claims were not acceptable. Review Office agreed with the opinion of the WCB medical advisor and noted the file evidence indicated the worker did not report sustaining a blow to the outside of their elbow and their job duties did not require sustained forceful and repetitive wrist movements. As such, Review Office could not establish an accident occurred in the course of the worker’s job duties on February 12, 2020 and that those duties were not typical for the development of bilateral lateral epicondylitis and found the worker’s claims were not acceptable.

The worker’s representative filed an appeal with the Appeal Commission on November 24, 2020. A videoconference hearing was arranged and held on April 29, 2021.

Reasons

Applicable Legislation

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 is injured in an accident, the worker is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.

The term “accident” is defined in Subsection 1(1) of the Act and provides as follows:

“accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a willful and intentional act that is not the act of the worker;

(b) any

(i) even 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;

Subsection 39(2) of the Act provides that the WCB will pay for wage loss benefits until such time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Worker’s Position

The worker was represented by a worker advisor. It was the worker’s position that the claims should be acceptable.

The worker described the events that occurred on February 12, 2020. He said that he was called in to work early that day and was asked to perform different job duties for which he had not been given any training or instruction and which included un-hooking trailers. The worker said that after backing the trailer into the loading dock, he attempted to release the kingpin on the trailer by pulling at the lever. He said that he used both arms with a fair amount of force, but was unable to dislodge the lever. He was not aware, until later advised by a mechanic, that the use of a mechanical button inside the truck was required to release the kingpin.

Although the worker noticed soreness in both elbows at the time that he was trying to release the pin, he did not think he had injured himself and hoped that the soreness would resolve on its own. He therefore returned to work the next day and continued to perform his regular duties over the next two weeks, which required reaching, grabbing and lifting pallets with both arms.

Over the course of the next two weeks, the worker began to experience increasing pain in both elbows which led him to attend a physician. He was diagnosed with tennis elbow in both elbows, right greater than left.

In the worker’s view, he injured both elbows while applying force to release the lever on the truck on February 12, 2020. The initial injury was aggravated by continued use of his arms while performing his regular duties over the next two weeks. In the worker’s view, the delay in reporting of the injury was reasonable in the circumstances and well within the time frame permitted under the Act. The worker therefore submitted that his claims ought to be accepted.

Employer’s position

The employer was represented by an advocate at the hearing.

It was the employer’s position that the decision of the Review Office should be upheld. The employer submitted that the WCB has done its own due diligence and correctly assessed the claim. For the claims to be acceptable, there must either have been an acute injury or a repetitive stress-induced injury, neither of which were present in this case. Specifically, the delay in reporting by the worker leads to the conclusion that there was no acute injury on February 12, 2020. Further, the injuries themselves were not cumulative or the result of repetitive stress. At a minimum, there is no medical evidence, or at least limited medical evidence, to support the conclusion that the worker’s injuries were a result of repetitive stress. Despite comments by the physiotherapist suggesting that there was a correlation between the worker’s regular job duties and the injury, the employer submitted that the physiotherapist’s report was vague on this point and it was unclear what duties the physiotherapist had actually reviewed in determining a causal relationship between the job duties and the injury. The employer therefore submitted that the appeal should be dismissed.

Analysis

The issue before the panel is whether or not the worker’s claims are acceptable. In order for the worker’s appeal to succeed, the panel must find that the worker’s elbow difficulties were either caused by an acute injury on February 12, 2020 or were aggravated or enhanced by repetitive use during the normal course of the worker’s duties. For the reasons that follow, the panel is able to make that finding.

The panel has reviewed the mechanism of injury on February 12, 2020 as described in the material before the panel and by the worker during the hearing. The worker also described in detail the work he does during his regular duties and which required the worker to use both arms and both hands for lifting, carrying and placing product throughout his shift. The product the worker is required to lift and load can often be heavy.

The panel considered the opinions of the worker’s treating physician, physiotherapist and the specialist to whom the worker was referred, as well as the WCB advisor. The diagnosis of the specialist was bilateral epicondylitis, right greater than left. In his report and his clinical notes, the specialist noted that the injury could have been caused by the workplace injury of February 12, 2020 as well as by over use. The worker’s physiotherapist also agreed that the bilateral elbow problems could be related to the worker’s employment. Although the WCB advisor commented that epicondylitis is a very common condition in the general public and may arise without a specific recognized trigger or cause, the WCB advisor also acknowledged that in the presence of epicondylitis of whatever cause, performance of work duties involving wrist movements or loading will provoke symptoms and that in the setting of established epicondylitis at one elbow, symptoms could be provoked at the other elbow if the demands on the other, previously unaffected elbow were suddenly increased.

Based on our review of the medical evidence on file and the evidence at the hearing, the panel finds, on a balance of probabilities, that the worker sustained an accident on February 12, 2020 that caused bilateral epicondylitis. The panel further finds, on a balance of probabilities, that the bilateral epicondylitis in this particular case continued to be aggravated by the repetitive nature of the worker’s job duties.

The worker’s claims are acceptable and the appeals are therefore allowed.

Panel Members

K. Wittman, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of June, 2021