Decision #132/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A videoconference hearing was held on September 23, 2021 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
In a Worker Incident Report filed with the WCB on January 14, 2020, the worker reported an injury to their left thumb/middle finger that occurred on January 1, 2010 and reported to the employer on December 1, 2018. The worker described that the injury occurred as follows:
“I grab bags with my index finger and thumb daily. You grab onto the corner of the bag so you can cut it open with a safe knife. It is a lot. Since the last year it has been improved because there is a perforation line which you can grasp with both hands to rip it open. We have to pick it up by the corner and cut it open to dispose of bags that are over or underweight and drop it down a reclaim shoot. This is why I believe it is worn out. It constantly cracks.”
The worker noted they delayed in reporting their injury as they thought it was arthritis and would not worsen.
In discussion with the WCB on February 5, 2020, the worker advised they had been employed with the employer for 25 years and the difficulties in their thumb began approximately 10 years earlier with increased symptoms noted in approximately December 2018. The worker reported that they underwent surgery to remove a ganglion cyst in February 2019. The worker related their difficulties to job duties that involved grabbing and opening bags, as well as to duties in another position performed for approximately a year that involved shoveling and cleaning floors. Further, the worker noted their left middle finger difficulties occurred in the previous six months.
On February 5, 2020, the WCB received a copy of a November 29, 2019 report from the worker’s treating hand specialist. The hand specialist diagnosed left first carpometacarpal osteoarthritis and left Dupuytren’s contracture as well as other degenerative changes. The worker did not wish to pursue surgical release for the Dupuytren’s contracture and therefore further conservative treatment was recommended.
On February 12, 2020, the WCB received a narrative report from the worker’s treating family physician in which the physician stated the worker first reported finger stiffness previously, but not ten years earlier, and noted the worker initially presented with left thumb and finger pain approximately 18 months previously. Further, the treating physician supported the worker changing positions at work and noted the worker had “…significant improvement in pain control.”
The employer provided the WCB with descriptions of the job duties for both positions the worker had been performing in February 2020. On February 21, 2020, the WCB advised the worker that after reviewing their file, it determined the claim was not acceptable as the diagnoses provided by the treating healthcare providers did not support they sustained an accident arising out of or in the course of their employment.
On September 8, 2020, the worker requested reconsideration of the WCB’s decision to Review Office. The worker provided a detailed chronology of their injury, along with additional medical information from their treating plastic surgeon. On September 9, 2020, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation. On September 30, 2020 and October 2, 2020, the WCB spoke with the worker to gather further information regarding their claim. The worker confirmed they developed a ganglion sometime in 2018, and it came on suddenly. The worker indicated they noticed the ganglion and their thumb pain/arthritis at approximately the same time. Further, the worker noted the trigger finger was first noted by their treating family physician in November 2019.
A WCB medical advisor reviewed the worker’s file on October 23, 2020 and provided an opinion that the diagnosis was a left first carpometacarpal osteoarthritis with Dupuytren’s contracture of the left third finger. The medical advisor stated that osteoarthritis is degenerative and a Dupuytren's contracture is a genetic condition, and as such, both diagnoses would be considered pre-existing conditions.
On November 2, 2020, the WCB advised the worker that a relationship between their difficulties and their job duties could not be established, and the claim was not acceptable. The worker again requested reconsideration of the WCB’s decision to Review Office on November 25, 2020 and included a letter in support of their request from their treating family physician dated November 10, 2020.
Review Office found on January 13, 2021 that the worker’s claim was not acceptable. Review Office relied on the opinion of the WCB medical advisor and found the worker’s job duties were not causally related to their hand diagnoses.
The worker filed an appeal with the Appeal Commission on April 30, 2021. A videoconference hearing was arranged for September 13, 2021.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was subsequently received and was forwarded to the interested parties for comment. On November 2, 2021, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
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.
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 worker represented themself in the hearing and provided an oral submission to the panel outlining why the appeal should be allowed. The worker also provided testimony in response to questions posed by members of the appeal panel.
The worker’s position is that their left thumb osteoarthritis and left 3rd digit triggering is caused by and the result of their job duties with the employer including both their regular job duties and the alternate duties undertaken for a year beginning in January 2019. The worker stated their belief that the repetitive job tasks as described below caused the symptoms in their left hand. For this reason, the worker believes that the WCB should accept the claim as arising out of repetitive job duties and the appeal should be granted.
The worker provided the panel with a description of their daily, regular job duties which include cutting open 100-400 bags, each containing 5-6 pounds of product. The worker indicated they hold the bag with their left thumb and 1st finger while cutting the bag open with their dominant right hand. The worker estimated that over 20-plus years, they have opened more than 800,000 bags in this way and based upon their conversations with the treating plastic surgeon, they believe that these repetitive duties caused the development of left thumb osteoarthritis over time. On questioning by panel members, the worker confirmed that this task is undertaken for a total of approximately 30 minutes daily, and that they could open 20-22 bags per minute.
The worker described shifting to alternate duties with the employer in January 2019. Those duties involved shoveling product from the floor onto a belt situated above the worker’s head. The worker believes that use of the shovel put weight on their left middle finger, and that it was triggered as a result. The worker indicated they worked in this area for one year and then asked the employer for other duties, at which time the worker returned to their usual job duties. By that time, a new method was available for opening bags that did not require the same hand movements as the worker described.
In response to panel member questions, the worker indicated that the job demands analysis for their regular job duties, provided by the employer, is from 2009 and is not accurate in that the time spent opening packages accounts for more than 4% of the day’s work. The worker stated that they work a 12-hour shift.
In response to the WCB medical advisor’s opinion of October 23, 2020 indicating potential risk factors for Dupuytren’s contracture, the worker confirmed that these factors are not applicable and referred the panel to the November 10, 2020 report from the treating family physician as confirming that. The worker also noted that the treating plastic surgeon confirmed they do not have Dupuytren’s contracture.
In sum, the worker’s position is that their left thumb osteoarthritis and left middle finger triggering are caused by participation in their repetitive job duties over a lengthy period of time and as such, the worker’s injury is the result of their employment activities and therefore the WCB should accept the worker’s claim.
The employer did not participate in the appeal.
The issue for determination by the panel is whether the worker’s claim is acceptable. To grant the worker’s appeal, the panel would have to determine that the worker was injured as a result of an accident as defined by the Act, arising out of and in the course of their employment. In other words, we must find that there has been an injury caused by an event or by duties arising out of and in the course of employment for the claim to be acceptable. The panel was not able to make such a finding, as outlined in the reasons that follow.
The panel notes that in the course of their submission, the worker raised a number of labour relations issues that are not within the jurisdiction of this tribunal and therefore these are not addressed by this decision.
The panel reviewed the evidence and considered whether there is support for the worker’s position that their left-hand diagnoses are causally related to participation in their employment activities.
The treating hand specialist, in a report dated November 29, 2019 recorded findings of left first carpometacarpal osteoarthritis, left Dupuytren’s contracture, degenerative disc disease and facet osteoarthritis as well as symptoms suggestive of left knee osteoarthritis.
The worker’s treating family physician confirmed to the WCB in a report dated February 7, 2020 that the worker first presented with left hand issues on January 22, 2019, specifically for “left thumb and finger pain and difficulty” as well as a ganglion on their left wrist. Treatment of the ganglion did not reduce the worker’s symptoms, but the family physician noted that the worker’s symptoms improved when they switched positions at work and did not use their hands to open packages.
The panel considered that in the July 1, 2020 report, the treating plastic surgeon stated that the worker:
“…has significant arthritis at the base of the left thumb and …is quite tender when pressure is applied. The movement also caused a lot of pain. Due to the fact that [the worker] does not have any arthritis on the right thumb, I would suspect that this may be from the repetitive movement [the worker] has done for all these years. [The worker] does not have Dupuytren’s disease, but has a triggering of the middle finger.”
The treating plastic surgeon also stated in their September 30, 2021 response to the request from the panel for further information that “I cannot give you an opinion regarding causation of [the worker’s] middle finger triggering because this is a very common problem and most of the time the causation is not known.”
The WCB medical advisor, in their opinion dated October 23, 2020 noted that the most recent diagnoses on file were left 1st digit osteoarthritis and Dupuytren’s contracture of the left 3rd digit. The medical advisor noted that osteoarthritis “…is a degenerative process that increases in frequency with increasing age” and that symptoms “…may arise spontaneously or with activity. If activity related, these are usually self-resolving and temporary. If not associated with fracture/dislocation, there would be no anticipated alteration of the natural history…” of the osteoarthritis. The medical advisor went on to state that both osteoarthritis and Dupuytren’s contracture are typically considered pre-existing conditions and that there are no medical reports in relation to the worker’s claim “…on which to conclude that an aggravation/enhancement has occurred.”
The worker’s submission and testimony to the panel provided a clear description of the nature of the worker’s job duties. While there is evidence that the worker was required to undertake repetitive grasping with their left thumb and first finger for a portion of each workday in the course of their regular job duties, the evidence does not support a finding that this activity caused the worker’s left thumb osteoarthritis. In this regard, the panel accepts and relies upon the opinion of the WCB medical advisor that osteoarthritis is a degenerative process with symptoms that may arise with activity but that the activity itself does not cause or worsen the condition.
With respect to the diagnosis of left 3rd finger triggering, the panel noted that there is a lack of evidence that causally links this condition to the worker’s job duties, neither the regular duties nor the alternate duties undertaken beginning in January 2019. The treating plastic surgeon explicitly stated they were not able to support such a causal link and that causation of this condition is typically “not known.”
On the basis of the worker’s testimony as to the nature of their job duties as well as the information the employer provided to the WCB, the panel finds that there is a lack of evidence to support a finding that the worker’s continuing, or alternate job duties caused or worsened their left thumb osteoarthritis or their left 3rd digit triggering. Although the worker related their symptoms and diagnoses directly to their work duties, the medical evidence does not support a finding that the worker’s left-hand conditions arose as a result of their work activities.
The panel is therefore satisfied, on the standard of a balance of probabilities, that the worker’s left-hand difficulties did not develop as the result of and were not caused by the worker’s continuing occupational duties. Therefore, we conclude the worker was not injured as a result of
an accident. In the absence of evidence of an injury resulting from an accident, the worker’s claim is not acceptable. The worker’s appeal is denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
W. Skomoroh, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of November, 2021