The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's claim is acceptable. A videoconference hearing was held on November 23, 2021 to consider the employer'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 20, 2019, reporting that she injured both her elbows at work, with an incident date of September 3, 2019. The worker related her injury to repetitive use of her arms and provided a list of her job duties. The worker stated she first noticed her symptoms when she lifted her equipment bag with her left arm, and felt a sharp pain, and had to put the bag down and lift it with her right arm. Since that time, the pain would come and go, starting as a throbbing feeling in her left arm. The worker stated that she would compensate by using her right arm more for her daily duties. The pain would sometimes travel to both hands and would feel like numbness when really bad. By October 2019, she started having difficulty sleeping. The worker noted that both elbows were painful, but her left elbow was worse than her right.

On November 6, 2019, the worker sought medical treatment from her family physician. The worker described a repetitive motion strain with pain in her medial elbows, greater on the left than the right, which was exacerbated by activities that included vacuuming, mopping, lifting, driving, or anything that required flexion of the wrist. On examination, the family physician noted tender medial epicondyle bilaterally, full range of motion of the elbow, no overlying skin changes and strength 4/5 secondary to pain. The family physician diagnosed the worker with bilateral medial epicondylitis and recommended physiotherapy and a minimum of six weeks of no activity that exacerbated the pain. Restrictions were noted to be "No exacerbating activities - nothing that requires the use of forearm flexors."

The employer filed an Employer's Accident Report with the WCB on November 25, 2019, indicating that the worker reported the injury to both her elbows to the employer on November 18, 2019. The employer noted that "No specific incident was reported. Employee asked for accommodation - claiming injury is related to repetitive work related injury." The employer added that the worker advised she had been experiencing symptoms but had been trying to manage without filing a WCB claim until she required accommodation.

On November 26, 2019, the WCB contacted the worker to discuss her claim. The worker confirmed her belief that the diagnosis of bilateral medial epicondylitis was caused by her repetitive job duties. The worker also confirmed that her symptoms started in early to mid-September 2019 in her left elbow and consisted of aches and pains while she was working. The worker said she attempted to modify her duties by using her right hand, but in October 2019, she began to notice difficulties with her right elbow, especially when lifting heavy items like her equipment bag. The worker further confirmed that there was no change in her duties or workload around the time of the onset of her symptoms. The worker listed her job duties and described those that were repetitive, required gripping and/or force and put her wrists in awkward positions.

On November 28, 2019, the WCB advised the worker that her claim was not acceptable as they had determined her job duties were not consistent with the development of epicondylitis.

On November 29, 2019, the worker's family physician provided a letter in support of the worker's claim. On December 2, 2019, the worker requested that Review Office reconsider the WCB's decision, noting her job duties varied only slightly over the course of a shift, and included highly repetitive and forceful arm movements that comprised up to 90% of her day's activity, with the remaining 10% being devoted to transportation. The worker further noted that her family physician concurred that her condition was the result of her work environment.

On January 10, 2020, Review Office overturned the WCB's decision that the worker's claim was not acceptable. Review Office found that the anatomical movements the worker was required to perform to complete her job duties caused a repetitive strain injury involving her elbows. Review Office concluded that the definition of an accident under The Workers Compensation Act was met and the worker's claim was acceptable. Accordingly, the worker's file was returned to the WCB's Compensation Services to consider possible benefit entitlements.

On January 27, 2020, the employer appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged for November 23, 2021.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The worker would not authorize release of the requested information to the appeal panel, and on February 16, 2022, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

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.

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.

WCB Policy 44.05, Arising Out of and in the Course of Employment states, in part:

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.

Employer's Position

The employer was represented by its Director of Business Operations, who made an oral submission at the hearing and responded to questions from the panel. The representative's business partner was also in attendance at the hearing as an observer.

The employer's position was that they were in full agreement with the WCB's original decision of November 28, 2019 that the worker's claim was not acceptable, and their appeal from the Review Office decision should be granted.

The employer's representative referred to and relied on the written submission they had provided with their Appeal of Claims Decision form, and the attachments to that submission.

The representative submitted that the nature of the worker's claim was not clear in terms of whether it was based on an acute or a repetitive strain injury. While the worker referred in her claim to a specific incident in September 2019, the representative noted that this incident or injury was never reported to the employer prior to November 18, 2019, that details of the incident were not provided, and that the worker did not seek medical attention within a reasonable period of time after the incident. The representative argued that if the left elbow injury resulted from that incident, it could not also be the result of a repetitive strain injury.

In terms of a repetitive type of injury, the employer's representative stated they disputed the worker's job duties were highly repetitive and forceful. The representative acknowledged the work involved some degree of repetition, but submitted that this was not to the degree that would cause such an injury. The representative noted that the worker performed a variety of tasks, and did not perform the same tasks for long periods of time. The worker worked with a partner and they would normally work at three, or sometimes four, jobsites each day, and would rotate tasks from one site to the next. Travel time between jobs and breaks also provided reasonable rest periods for the worker, and accounted for approximately 25% of the day's clocked time.

With respect to forceful tasks, the employer's representative stated that they considered mopping, and 50% of the tasks involved in cleaning bathrooms, or up to 30% of the assigned tasks in a day, to be potentially forceful. The representative indicated that they supplied equipment which alleviated the need for force in most tasks under normal circumstances. The representative noted that normal circumstances consisted of recurring customer spaces which were serviced on a weekly, bi-weekly or monthly basis, and therefore had low levels of dirt build-up, and that these made up more than 90% of any team's given schedule. The other less than 10% of assigned work would consist of one-time or first-time spaces, where more force and time might be required to address higher levels of dirt build-up.

In support of their position, the employer's representative referred to a schedule they had submitted with their appeal, which showed a breakdown of the worker's total cleaning hours between September 3 and November 18, 2019. The representative noted that the schedule summarized the worker's "cleaning hours" per day, the job duration showing the start and end time of each job, and the service level for each job, as well as indicating the travel time between jobs and rest time.

In conclusion, the employer's representative submitted that the nature of the worker's job was not repetitive or forceful to the degree that would have caused such a repetitive type of injury, and the Review Office decision should be overturned.

Worker's Position

The worker was represented by a worker advisor, who provided written submissions in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from her representative, and the worker and her representative responded to questions from the panel.

The worker's position, as outlined by her representative, was that she agreed with the Review Office decision that her claim is acceptable, and the employer's appeal should be dismissed.

The worker's representative submitted that the evidence supports the worker developed bilateral elbow difficulties, diagnosed as bilateral medial epicondylitis, as a result of her job duties. The representative noted that epicondylitis is an overuse in muscle strain injury which is typically associated with activities characterized by the combination of repetitive, forceful and resisted grasping. The representative submitted that medical literature indicates that occupations which require repetitive gripping or clenching of the fingers, especially when the wrist is in a bent up or down position, are at risk of developing medial epicondylitis.

In response to questions from her representative, the worker described in detail the tasks she performed in cleaning various rooms or spaces at different jobsites, including bathrooms, kitchens, bedrooms, and living spaces. The worker's representative submitted that the duties, as described, relied heavily on the worker's use of her upper limbs, and involved forceful gripping, scrubbing, and awkward positioning of her hands, wrists, and arms while performing her job duties. The representative submitted that everything the worker described doing in her workday involved grasping, including grasping rags, spray bottles, and scrubbing brushes, grasping items to move or lift and clean underneath them, grasping the vacuum cleaner to assemble, use and disassemble it, and grabbing the equipment and equipment bag to load and unload the vehicle.

The worker's representative noted that the worker typically worked at three to four jobsites each day. A cleaning checklist from the employer's website which the representative had submitted in advance of the hearing identified the tasks that were involved in providing these services, and online reviews from customers which had also been submitted in advance of the hearing showed that the teams regularly performed duties and services that were above and beyond those that were listed on that checklist. The representative submitted that the job was fast-paced and physically demanding, and the totality of the job demands led to the onset of the worker's condition, which occurred gradually over time.

The worker's representative submitted that the worker's duties or workload increased in October 2019, as illustrated in the breakdown of the worker's hours per day submitted by the employer, which showed the worker completing four first-time or one-time cleans that month where more force would have been required to address a higher build-up of dirt.

The worker's representative submitted that all of the medical evidence supports that the workplace duties caused the worker's bilateral epicondylitis and there is no evidence of outside factors having contributed to her diagnosis or condition. The worker described bilateral elbow pain which started when she was working as a cleaner and progressively worsened as she continued performing her duties. The representative noted that this description was consistent in all the reports to the WCB, the employer and the treating physicians and physiotherapist.

In conclusion, the worker's representative submitted that the worker's job duties and the effort involved in performing those duties resulted in the worker being injured, and the decision that the claim is acceptable should be upheld.

Analysis

The issue before the panel is claim acceptability. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the worker did not suffer a personal injury by accident arising out of and in the course of her employment. More particularly, the panel must find that the worker's bilateral medial epicondylitis or bilateral elbow difficulties were not causally related to the performance of her job duties. For the reasons that follow, the panel is able to make that finding.

The worker's claim is with respect to a cumulative or repetitive injury as opposed to an acute injury. In response to questions from her representative and from members of the panel at the hearing, the worker reviewed the tasks she performed, the sequencing of those tasks, the areas or spaces she worked in, and her posture and positioning as she performed her job duties. Having carefully reviewed and considered the tasks the worker performed, as described on file and at the hearing, the panel is unable to find that the worker's job duties would have resulted in the development of the worker's bilateral medial epicondylitis or elbow difficulties.

In arriving at that conclusion, the panel acknowledges that the worker was using her arms all day long while cleaning. The evidence shows, however, the worker performed a variety of tasks and did not spend lengthy or extended periods of time performing any particular task or activity. The worker confirmed she worked with a partner and that she and her partner would alternate tasks from one jobsite to the next. The evidence also shows that most of the jobs involved spaces which were serviced on a regular basis, and did not involve a high level of dirt build-up.

When asked what duties the worker relied on in particular as requiring a lot of force with gripping, the worker noted that vacuuming carpets with a thicker underlay or "thick hairy carpets" required more force. The worker further indicated that she would have spent three to five minutes at a time vacuuming such carpets. The worker also referred to mopping as requiring more effort, particularly where there were marks or stains which had to be removed. While the worker's representative further suggested that everything the worker did during the day involved grasping things, the evidence does not support that this was forceful or resisted grasping.

The evidence shows that the worker was also assigned to provide cleaning services at first-time or one-time spaces, where she might have had to use more force and time due to high levels of dirt build-up. The employer indicated that the worker would be assigned to clean such spaces less than 10% of the time. While the worker's representative submitted that the breakdown of the worker's hours as provided by the employer showed that she had been assigned four one-time or first-time jobs in October 2019, resulting in an increase in her duties, the panel notes that a review of the number of cleaning hours for that month indicates that the worker still spent only approximately 10% of her cleaning hours that month working at these four jobsites.

Overall, the panel's general impression of the worker's job duties was that her work was relatively fast-paced and demanding. The panel is not satisfied, however, that her duties involved the type of prolonged or repetitive and forceful work that would be considered causative, or was causative, of the worker's bilateral medial epicondylitis or elbow difficulties.

The worker also indicated at the hearing that she still has issues with her elbows. She said they are getting better, but it is a very slow process. The worker advised that she has received cortisone injections, and was referred by her family physician to a sports medicine physician. She said she has undergone x-rays, an MRI and a nerve conduction study, and that "everything came back all right." When asked further about this, the worker said the tests confirmed the diagnosis, but that they did not show anything; that everything looked good with respect to the MRI and nothing seemed abnormal with the nerve conduction study. She noted, however, that the treating sports medicine physician "still feels that it…is epicondylitis."

Following the hearing, the panel requested additional medical information from the sports medicine physician and the family physician prior to discussing the case further, including any imaging or test results relating to the worker's elbow condition. The worker would not, however, provide her authorization for the release of that information to the panel. The panel therefore met to discuss the case further and render our decision based on the information which was available and before us.

In conclusion, the panel finds, based on the available evidence and on a balance of probabilities, that the worker's bilateral medial epicondylitis or bilateral elbow difficulties were not causally related to the performance of her job duties. The panel therefore finds that the worker did not suffer a personal injury by accident arising out of and in the course of her employment, and her claim is not acceptable.

The employer's appeal is allowed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 14th day of April, 2022