The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that this claim is not acceptable. A videoconference hearing was held on April 21, 2022 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

On June 14, 2021, the worker reported an injury to the right elbow that occurred on March 16, 2021. The worker reported the injury was cumulative and was as a result of doing data entry and date stamping duties, with the pain being "…inside the bone, felt like needles." The worker reported the injury to their employer on April 15, 2021. The worker had a virtual visit with their treating sports medicine physician on April 15, 2021. The worker noted they had started on a graduated return to work plan due to a non-compensable injury and was working 4 hours per day. They reported to the physician they had "…previous problems with date stamping and may be aggravating arm." A doctor's note listing the worker's restrictions completed on the same date indicated the worker should "…minimize repetitive movement (date stamping) until reassessed until (sic) May 31, 2021." A further virtual visit took place on May 25, 2021 where the worker reported their right elbow pain had gotten progressively worse, which they related to the date stamping and did not feel they could continue that specific job duty. The treating sports medicine physician opined the worker likely had lateral epicondylitis but a clinical assessment would be required to confirm the diagnosis. A doctor's note the same date requested the worker be excused from performing the date stamping duties until they could be clinically assessed on June 11, 2021.

At the follow-up appointment with the sports medicine physician on June 11, 2021, the physician noted the worker had a normal x-ray and found tenderness in their lateral epicondyle, which tenderness increased with isometric extension of their wrist with some weakness. A diagnosis of lateral epicondylitis was provided; a brace, physiotherapy and topical anti-inflammatory medication was recommended. A note setting out restrictions of no repetitive gripping (date stamping), lifting greater than 5 pounds and may require short breaks from typing duties for four weeks was also provided.

On June 15, 2021, the worker attended for an initial physiotherapy assessment reporting lateral elbow pain, "…worse at work with excessive typing, stamping or any lifting over 5lbs." The worker advised the physiotherapist the pain did not travel but did restrict their activities of daily living such as cooking and cleaning. With testing, the physiotherapist reporting the worker had pain with resisted wrist extension, elbow extension and finger extension, and noted a positive Cozens and middle finger test. The treating physiotherapist diagnosed the worker with right lateral epicondylitis and recommended restrictions of no typing more than 1 hour continuously, breaks required as needed; no repetitive gripping or wrist movements; and no lifting over 5 pounds.

The WCB contacted the worker on June 21, 2021 to discuss their claim. The worker advised they were on a gradual return to work plan for a non-compensable injury and had started their current position on March 16, 2021. On the third day of working in this position, the worker began to experience elbow pain, which they related to the date stamping portion of their job duties. On April 15, 2021, they were given a note to minimize the movement of the date stamping duties until they could be assessed in person on May 25, 2021, which ended up being a virtual appointment and an in-person appointment was arranged for June 11, 2021. The worker then advised at that appointment, the treating physician recommended they take short breaks from typing however, the employer advised the worker not to return to work. On June 23, 2021, the WCB again contacted the worker who provided further details about their claim. The worker advised they performed the date stamping duties from March 16, 2021 to April 15, 2021, with their gradual hours of work increasing from 4 hours, then to 5 hours on April 14, 2021 and up to 6 hours per day by June 7, 2021. The worker advised when they were working four hour shifts, they performed the date stamping duties for approximately one hour and when their work hours increased to five hours on April 14, 2021, those duties increased to approximately one and a half hours per shift. The worker noted their current symptoms included pain with any movement of their right arm and they had been performing home based exercises provided by the physiotherapist after the initial assessment.

The employer provided the WCB with the job duties for the worker's position on June 25, 2021 and advised the worker had been participating in a graduated return to work plan since March 2021. Further, the employer advised the worker was only performing portions of the job duties listed and as they gained proficiency with the duties assigned, more responsibilities would be added until they were performing the full scope of the position. The employer also advised an ergonomic assessment had been conducted for the worker prior to their return to work, with the recommendations implemented for the worker.

On July 29, 2021, the worker's file was reviewed by a WCB medical advisor. The advisor opined the worker's current diagnosis was right lateral epicondylitis, "…which involves the presence of lateral elbow pain (pain over the lateral epicondyle of the elbow) that is made worse with resisted wrist extension as the condition involves irritation of the wrist/forearm extensor muscles at their insertion point at the lateral elbow." The advisor went on to provide lateral epicondylitis would typically improve or resolve over a period of weeks to months with modification to activities and physiotherapy. The WCB medical advisor advised that lateral epicondylitis develops as the result of activities that involve repetitive and relatively forceful use of forearm muscles, and/or repetitive extension of wrist and hand and "…typically require a cumulative exposure of days rather than hours depending on the intensity of forces involved."

The WCB contacted the worker to advise their claim was not acceptable on July 29, 2021 as they could not relate the worker's diagnosis of lateral epicondylitis to their job duties, noting the typing and date stamping may have been repetitive but it was not forceful. The worker advised they had returned to work on July 27, 2021.

The worker requested reconsideration of the WCB's decision to Review Office on August 19, 2021. In their submission, the worker provided a chronology of the events leading up to and after their workplace injury and advised as they continued to suffer the effects of that injury, they required medical treatment and further benefits. On October 5, 2021, the employer provided a submission in support of the WCB's decision, a copy of which was provided to the worker on the same date, with the worker providing a response on October 9, 2021.

On October 13, 2021, Review Office upheld the decision of the WCB the worker's claim was not acceptable. Review Office agreed with the opinion of the WCB medical advisor that job duties that lead to the development of lateral epicondylitis include strong grip against force with twisting and pulling motions and take several months to years of repetitive work against force to develop. Review Office found the worker's date stamping job duties did not involve forceful or resisted movement for a long duration and as such, could not establish a relationship between those duties and the worker's diagnosis of lateral epicondylitis. On October 16, 2021, the worker requested Review Office again review the medical information submitted on their claim and noted disagreement with a portion of Review Office's decision related to their stopping work in June 2021. On October 19, 2021, Review Office provided a clarification letter to the worker advising the clarification did not change the decision.

The worker filed an appeal with the Appeal Commission on November 1, 2021 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 and policies of the WCB’s Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

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.

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.

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;

WCB Policy 44.05, Arising Out of and in the Course of Employment, provides some further explanation of the meaning of the term ‘accident.’ Policy 44.05 states in part as follows:

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.

In other words, an accident will have arisen out of employment if there is a causal connection between the activity that caused the injury and employment and it will be considered to have occurred in the course of employment if the injury occurred during working hours at the place of employment and while the worker was involved in activities incidental to employment.

Worker’s Position:

The worker represented herself at the hearing. It was the worker’s position that the claim ought to be acceptable and the appeal allowed.

The worker explained that she began to experience pain in her right elbow after working for several weeks. She relayed that she started a new position on March 16, 2021. Although the new position involved mostly data entry, which she had done for years, it also involved date stamping, which was a new activity for her. The worker was asked to describe the date stamping activity. She explained that it involved stamping the date stamp on the ink pad and then stamping the paper, moving her right hand back and forth repeatedly between the ink pad and the paper, for up to 1.5 hours each day.

In the worker’s view, her pain was related to the use of the date stamp. She said that she initially noticed symptoms at the end of March when she started in the new position. The pain became increasingly worse over time. The worker described the pain as though someone was inserting needles into her elbow bone. At times, it was sufficiently severe to keep her up at night. Although it improved with rest, when aggravated, the pain resumed. Within one month of beginning the new position, the pain had increased to the point that she felt she required medical attention and she reported the pain to her doctor. She was subsequently diagnosed with lateral epicondylitis, also known as tennis elbow. She also reported the matter to her employer.

Employer’s Position:

The employer was represented by a WCB coordinator. It was the employer’s position that the worker’s lateral epicondylitis was not causally related to the performance of the worker’s job duties and the appeal should therefore be denied.

The employer submitted that the worker’s duties were neither physically nor anatomically consistent with the occupational related causes of lateral epicondylitis. The employer emphasized the fact that lateral epicondylitis develops as a result of repetitive duties against force. Although the date stamping was repetitive, it did not involve the type of force necessary to cause epicondylitis. On this point, the employer relied on the report of the WCB medical consultant who opined that the activities recognized to contribute to the development of lateral epicondylitis involve both repetitive and relatively forceful use of forearm muscles or a repetitive extension of the wrist/hand. Repetition, in these cases, referred to engagement in a repeated activity continuously throughout the workday. Given that the activity at issue involved neither force nor repetition beyond an hour or so each day, the date stamping was not the type of activity that would be causally related to the worker’s employment.

In the employer’s submission, therefore, the evidence did not support the conclusion that the worker’s development of epicondylitis was causally related to the performance of her job duties. The appeal, therefore, should be dismissed.

Analysis:

The issue before the panel is whether or not the worker’s claim is acceptable. In order for the worker’s appeal to succeed, the panel must find, on a balance of probabilities, that the worker’s elbow difficulties were causally related to the worker’s duties. For the reasons that follow, the panel is able to make that finding.

The worker experienced a gradual onset of symptoms within a few weeks of beginning her new position and engaging in the date stamping activity. The symptoms increased in severity to the point that her treating physician recommended that she discontinue date stamping. After she stopped date stamping, the worker’s symptoms improved.

The panel has carefully considered the worker’s description of her daily activities, including the date stamping. The worker also demonstrated the date stamping activity to the panel during which she illustrated how she would grip the date stamp, stamp the ink pad near her, extend her arm in front of her and press the stamp into the paper. She described it as an activity that she did continuously and in rapid succession for at least an hour and up to 1.5 hours each day.

Having considered the oral evidence at the hearing, as well as the medical evidence, and in particular, the onset of symptoms and the worker’s description of her activities, the panel is satisfied that there was a direct correlation between the date stamping activity and an onset of elbow pain and symptoms. Once the date stamping task was removed, the worker’s symptoms decreased. While the panel acknowledges that jobs which typically give rise to lateral epicondylitis frequently involve an element of force as well as twisting and pulling motions, the panel is nevertheless satisfied that the date stamping activity in this case, as described to the panel by the worker, was both repetitive and involved enough forcefulness that it was sufficient to trigger the elbow symptomology.

The panel therefore finds, on a balance of probabilities, that the worker sustained an accident arising out of and in the course of employment. The claim is therefore acceptable and the appeal 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 16th day of June, 2022