The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A videoconference hearing was held on December 7, 2021 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 63/20 dated June 15, 2020. The background will therefore not be repeated in its entirety.

The worker filed a claim with the WCB on July 5, 2018 for an injury to his right shoulder and elbow that occurred on April 18, 2018. In a decision dated July 26, 2018, the WCB advised the worker that his claim was not acceptable. The worker provided new medical information to the WCB on September 6, 2018. On September 26, 2018, the WCB advised that the information had been reviewed but there would be no change to the earlier decision.

On October 3, 2018, the worker appealed the decision to Review Office and provided further detailed information regarding his job duties and the repetitive use of his wrist. On November 20, 2018, Review Office determined that the worker's claim was not acceptable.

On October 24, 2019, the worker appealed the Review Office decision to the Appeal Commission, and on June 15, 2020, under Decision No. 63/20, the Appeal Commission determined that the worker's claim was acceptable.

On September 24, 2020, the employer applied to the Chief Appeal Commissioner for an order directing reconsideration of the June 15, 2020 decision based on new evidence that was discovered or had arisen after the hearing. The employer noted that during the Appeal Commission hearing, the worker advised he performed repetitive job duties at a specific job site for 7.5 to 10.5 hours weekly. The employer provided samples of daily and weekly inspection sheets, initialed by the worker, indicating he attended at the job site approximately 4 to 4.5 hours in a typical bi-weekly period.

On November 10, 2020, the Chief Appeal Commissioner delegated her authority to consider the employer's request for reconsideration to a Presiding Officer. On December 22, 2020, the designated Presiding Officer granted the employer's request for reconsideration. The Presiding Officer determined that there was new, substantial and material information which was not available to the Appeal Commission at the time it made its decision, and that it was not reasonable to expect that information to have been available at the time of the hearing. The Presiding Officer also found that the evidence was relevant to the issue which was before the Appeal Commission and could potentially have had an impact on its decision. The Presiding Officer therefore ordered the Appeal Commission conduct a new hearing, and a videoconference hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act and policies established by the WCB's Board of Directors.

What constitutes an 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, 

(b) any

(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.

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.

The WCB's Board of Directors has established Policy 44.05, Arising Out of and in the Course of Employment, which states, in part, that:

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.

Worker's Position

The worker was represented by an advocate, who provided a written submission in advance of the hearing. The worker's advocate and the worker made a joint presentation to the panel at the hearing, and responded to questions from members of the panel.

The worker's position was that the right arm and shoulder symptoms he experienced starting in the spring of 2018 were the result of the duties he performed in the course of his employment with the employer, and his claim is acceptable.

The worker's advocate submitted that the duties he performed were reviewed and subsequently documented by the worker's treating sports medicine specialist in his letter of October 17, 2019 as the likely cause of the worker's condition. Those duties included daily sweeping and washing of floors; unplugging toilets and mopping up afterwards; moving, setting up and repairing furniture; clearing snow; raking; heavy lifting; grass cutting; and waxing floors.

The worker himself provided a further detailed description of a number of those duties and noted that all of the duties were physically demanding.

The worker's advocate quoted from and relied on the October 17, 2019 letter from the worker's sports medicine specialist. The advocate submitted that there was no question that the medical evidence established that the injury to the worker was severe lateral epicondylitis. The advocate submitted that the treating specialist concluded that the demands of the work duties involved a high degree of the forceful movement required to cause lateral epicondylitis, and that based on his knowledge of the worker's medical condition, his review of the employment duties, and his discussions with the worker regarding his activities outside of work, it appeared the physical demands of his work exceeded the physical demands of his activities away from work.

The advocate noted that the discussion with respect to the worker's further duties at the onsite sewage plant was initiated by the panel at the previous Appeal Commission hearing, and the worker responded truthfully at that time and to the best of his knowledge.

The advocate referred to daily and weekly inspection sheets which the employer had provided in advance of the hearing, and noted that the sheets identified many of the more labour intensive tasks at that site which the worker normally completed over the week when he had available time to do so. The advocate submitted that the sheets were irrelevant, however, in terms of indicating the time spent on these tasks as the worker was in and out of the onsite plant over the entire week when he had time, and did not record his time on the weekly inspection sheet as such. When he went there during the week, he would do a particular task, then check it off on the inspection sheet, and the next time, he would do another task then check it off on the sheet.

With reference to photographs he had provided in advance of the hearing, the worker provided a further detailed description of the duties he performed during the week at the sewage treatment plant.

The worker acknowledged that the videos which the employer had provided represented the work which was described in the inspection sheets somewhat, but did not properly reflect the conditions or the effort that was required to properly perform various different tasks. He also noted that the video did not show other additional tasks that he performed, including washing the floor and taking the garbage out. The worker said he took pride in his work, and spent more time doing the tasks than was indicated on the videos.

In conclusion, it was submitted that weighing the evidence of the treating sports medicine specialist, file documents and additional relevant information, it was clear there was a far greater probability that the worker's medical condition resulted from his employment with the employer than from alternative activity, and his claim should be accepted.

Employer's Position

The employer was represented by its Manager of Human Resources, who was accompanied by the employer's Manager of Maintenance at the hearing. The employer provided a written submission in advance of the hearing. The employer's representatives made a joint presentation at the hearing and responded to questions from members of the panel.

The employer's position was that they had sought reconsideration of the Appeal Commission decision because they believed the information with respect to the onsite sewage treatment plant was not accurate, and the worker's claim was not acceptable.

The employer's representative indicated that they did not dispute the duties the worker performed at his main worksite. With respect to the list of duties the treating sports medicine specialist had listed and relied on, however, the representative noted that the duties were not necessarily performed every day, as some of them were seasonal, some were daily, and others were occasional.

The employer's representative further submitted that the duties in the worker's position were so varied from day to day, and they did not believe there would have been sufficient repetitive or forceful activity to cause the worker's right arm difficulties.

The employer had provided daily and weekly inspection sheets, photographs and two videos in advance of the hearing which, it was submitted were to provide a sense of the environment in the treatment place and a clearer understanding of the daily and weekly tasks to be performed.

The employer's representative submitted that while the Appeal Commission originally concluded, based on the evidence at that time, that the worker worked 7.5 to 10.5 hour per week in the sewage treatment plant, the new information they had provided showed that he actually worked much less time in that plant.

The employer's representative submitted that the videos could be viewed alongside the inspection sheets to demonstrate the time and physical effort required to perform the various tasks within the onsite sewage treatment plant. The representative said they did not dispute that there was work to do at that plant, but did dispute the time and the intensity and repetitive nature of the duties that were involved.

Analysis

The issue before the panel is whether or not 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 an injury as a result of an accident arising out of and in the course of his employment. For the reasons that follow, the panel is unable to make that finding.

The worker acknowledged that there had been no real change in his job duties from the time he began his employment in 2011 to the time he first noticed his symptoms in April 2018. He noted that the duties changed all the time, but were basically the same throughout.

The panel carefully considered the job duties as described, on file and at the hearing. The panel acknowledges that there was a significant amount of physical work involved in the worker's job. The panel finds, however, that while the worker performed a large variety of job duties, the evidence indicates he did not perform any particular duties for an extended period of time.

The worker also did not identify any particular mechanism of injury or duties which resulted in his condition. In the circumstances, the panel is not satisfied that the worker's job duties were sufficiently repetitive or forceful to have caused the worker's right arm difficulties or diagnosed condition of lateral epicondylitis.

With respect to the sewage treatment plant, the worker confirmed, in response to questions from the panel, that it was his position that the inspection sheets as provided by the employer were inaccurate and did not reflect the actual time he spent maintaining that plant. The worker stated that after a while he gave up on those sheets, noting that nobody said he was doing anything wrong. The worker said he would start his weekly inspection duties during the week, ticking off things on the work sheet as they were done, and that on the last day he would put down one hour if he took one hour.

The panel was unable to reconcile the worker's evidence as to the amount of time he spent working in the onsite sewage treatment plant with the employer's evidence in this regard. While the worker had indicated at the previous hearing before the Appeal Commission that he worked 7.5 to 10.5 hours per week in the onsite sewage treatment plant, this is not supported by what was documented in the inspection sheets and initialled by the worker at the time.

The panel was also unable to reconcile the worker's evidence at the hearing that he would spread the weekly maintenance tasks over the week, with his evidence at the previous Appeal Commission hearing that he would do such tasks every day, and would usually be in there for a couple of hours. At the hearing, the worker indicated there would be a break of approximately 40 minutes during the day where he would have some time to go and do some work in the sewage treatment plant. The panel further notes that in response to information from the employer which was provided in respect of the previous Appeal Commission hearing, the worker had provided a breakdown of the various tasks he performed at the sewage treatment plant, indicating for the most part that they would take longer than 40 minutes each.

The panel notes that the tasks in the onsite sewage treatment plant were also not referred to by the treating sports medicine specialist as tasks which were performed by the worker or causative of lateral epicondylitis, and there is almost no mention of those tasks prior to them being mentioned in the worker's submission to Review Office. Based on the evidence which is before us, the panel is unable to relate the tasks which the worker performed in that plant to the worker's right arm difficulties.

The panel is further unable to place significant weight on the October 17, 2019 letter from treating sports medicine specialist. The panel notes that the specialist indicates in his letter that the actual cause of lateral epicondylopathy is not known, and that the specialist's opinion is based on various assumptions and speculation.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer an injury as a result of an accident arising out of and in the course of his employment. The worker's claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of February, 2022