Decision #43/23 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was initially held on May 22, 2019. Subsequently a member of the appeal panel was unable to sit as an appeal commissioner. A new appeal panel was assigned and a further hearing was held on March 15, 2023 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker filed a Worker Incident Report with the WCB on October 4, 2017 reporting injury to their right wrist, forearm, elbow and back from an incident at work on July 28, 2017 which they reported to their employer on October 3, 2017. The worker attributed their injury to their repetitive job duties, reporting that since July 2017, they noticed a sharp pain when extending their arm and discomfort when lifting and in performing their regular job duties.

On October 5, 2017, the worker sought medical treatment from their family physician, who recommended the worker remain off work until October 12, 2017. When the WCB contacted the worker on October 5, 2017, the worker advised that on August 3, 2017, they noted an onset of pain in their right wrist, forearm and elbow while performing their regular job duties, and that those symptoms persisted. Further, the worker advised they did not initially report their symptoms to the employer as they had just started a new position at the end of July 2017 and thought the symptoms would go away as they became accustomed to the new job duties. The worker also advised the WCB of their part-time concurrent employment. When asked by the WCB about changes in their workload, the worker mentioned that a piece of equipment had stopped working and shortly after that time, their symptoms developed.

The Employer’s Incident Report provided to the WCB on October 10, 2017 included further details regarding the worker’s job duties, noted the worker’s two month delay in reporting and indicated there was no specific event or incident that caused the worker’s difficulties which they related to their regular job duties. The employer confirmed there were repetitive movements involved in the worker’s job duties but indicated that the work laid out “in such a way to mitigate strain to the employees by offering varied tasks throughout their shift.”

On October 10, 2017, the WCB spoke with a coworker who advised they were aware of the worker’s injury to their arm as the worker had mentioned it was sore starting approximately 1½ months earlier and the worker had been wearing a brace on their forearm.

At follow-up appointment with the worker on October 12, 2017, the family physician noted ongoing symptoms, with the worker reporting an increase in symptoms with any and all activities. The physician diagnosed repetitive strain injury and tendonitis and referred the worker to physiotherapy. The worker attended an initial physiotherapy assessment on October 13, 2017 reporting pain with movement at both upper extremities, neck pain and headaches that woke them up at night. The physiotherapist noted positive testing on the worker’s right side and diagnosed right lateral epicondylitis and mechanical neck pain. Further reporting from the physiotherapist to the treating family physician on October 18, 2017 indicated the worker was being treated for right de Quervain’s tenosynovitis, right lateral epicondylitis, and mechanical neck pain. At follow-up on October 19, 2017, the family physician noted improvement with physiotherapy but recommended the worker remain off work.

A WCB medical advisor reviewed the worker’s file on October 20, 2017 and noted that the current diagnosis for the worker was not clear, in that several different diagnoses had been provided involving the worker’s head, neck, upper back, right and left elbows and right wrist, including mechanical neck pain, left and right lateral epicondylitis and de Quervain’s tenosynovitis, with no diagnosis that medically accounted for all the worker’s reported symptoms. The WCB medical advisor stated that due to the delay in reporting of symptoms and the worker’s job duties performed over a short period of time, they could not medically account for the various complaints in relation to those job duties. On October 24, 2017, the WCB advised the worker their claim was not acceptable.

On November 14, 2017, the worker requested reconsideration of the WCB’s decision to Review Office, noting that the onset of their symptoms occurred while they were performing their job duties, that a portion of the equipment used to perform those duties was broken and that their treating healthcare providers supported their injuries were work-related. The employer’s representative provided a submission in support of the WCB’s decision on December 29, 2017. Review Office determined on January 17, 2018 that the worker’s claim was not acceptable. Review Office found the evidence did not support a finding that the worker sustained an accident in the course of or arising out of their employment. As well, Review Office found that due to the worker’s inconsistent report of the cause of their complaints being either their general job duties or working with the broken equipment and the delay in reporting their difficulties and seeking medical treatment, a relationship between the worker’s reported difficulties and job duties could not be established.

The worker’s representative filed an appeal with the Appeal Commission on April 3, 2018. An oral hearing was arranged for May 22, 2019 and the further hearing was held on March 15, 2023.

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 on the date of the accident apply.

Section 4(1) of the Act provides for compensation to be paid by the WCB where a worker has sustained personal injury by accident arising out of and in the course of employment. Section 4(5) of the Act sets out the presumption that an accident that arises out of employment occurred in the course of employment unless the contrary is proven, and that an accident that occurs in the course of employment arouse of the employment, unless the contrary is proven. The term “accident” is defined in s 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 it 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 (the “Policy”) provides general information on the meaning of the phrase "arising out of and in the course of employment," and 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 appeared in the hearing represented by a worker advisor who made an oral submission on behalf of the worker and relied upon their previous submission as outlined in the record of the May 22, 2019 hearing. The worker provided testimony through answers to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position, as outlined by the worker advisor, is that following the change in the worker’s job duties when they started a new position on July 12, 2017, the worker began to experience symptoms in their arm, wrist and elbows, neck and back, which worsened over time as the worker continued in their job duties until they sought medical attention and were removed from those duties by their physician. The worker’s position is that the evidence supports a finding that their injuries arose out of and in the course of their job duties and that as such, the claim should be accepted.

The worker advisor confirmed to the panel that the worker’s position is that the diagnoses of mechanical neck pain, left and right lateral epicondylitis and right de Quervain’s syndrome are all the result of the worker’s participation in their job duties beginning in July 2017.

The worker advisor submitted that the evidence confirms there were changes in the worker’s job-related activities that may account for the onset of symptoms, including that the worker was in a new position with much different duties, with the training for the new role beginning on July 12, 2017 and continuing over the subsequent two weeks. While the worker did not make any formal claim until October 2017, the evidence confirms that the worker’s manager and coworker were both aware that the worker was experiencing difficulties. The worker’s manager confirmed that they asked the worker in early August 2017 whether they wished to make an incident report. The worker advisor noted that despite the onset of symptoms beginning late in July 2017, the worker continued working until October when they sought medical treatment and were removed from the workplace, and during that time, the worker’s evidence is that their symptoms progressively increased as would be expected in a cumulative injury claim.

The worker advisor noted the WCB medical advisor, in their October 20, 2017 report, concluded that absent a confirmed diagnosis, the WCB should not accept responsibility for the worker’s injury, but submitted that a confirmed diagnosis is not required for a claim to be acceptable. Rather, the evidence must support only that the worker was injured arising out of and in the course of their employment.

In response to questions posed by members of the appeal panel, the worker described their various job duties from July 2017 onward. The worker testified that they used a heavy duty hose, kept coiled on the wall when not in use, for cleaning tasks undertaken throughout the workday. The worker noted that their duties included reaching for items that required cleaning, disassembling heavy or large items, loading the dirty items into the washing machinery. The worker described the job as very fast-paced, with few breaks or opportunities for rest. The worker described having to run back and forth with items to be washed some of which were quite heavy and had to be lifted and turned upside down to place inside the machine. The worker also described separating and removing lids from water jugs which required use of a flipping motion with force, using their right thumb. The worker indicated they would have to do this on approximately 60 jugs at least once, if not twice per day. The worker indicated that the items to be washed would be stacked high so that the worker would have to reach up above their head and shoulders to retrieve them. The worker described that the roller rack used to move the items for washing toward the worker’s station was not working from August 2017 through October when the worker went off work. As a result, the worker would have to run back and forth from where the items were stacked to the loading area. The worker testified that this roller rack was positioned at their shoulder height, approximately 4 ½ feet above the floor, and noted that they would have to grasp and lift the items placed on the roller rack with both arms extended. upward over the edge of the rack, and then down to a comfortable level to carry those items to the wash loading station. The worker also noted that items were often stacked on the roller rack although they were not supposed to be and that some employees would stand on stools to access the items on the rack. The worker also described pushing loaded carts down long passageways, which were sloped, with one cart held in front of the worker with one arm and the other behind, with the other arm, at times pushing and pulling if the slope was upward or restraining the carts to slow them when on a downward slope.

The worker explained that they first noted pain soon after beginning the job, and assumed it was muscle soreness related to doing too much with muscles unaccustomed to that work, but that soon they began taking daily anti-inflammatory medication to deal with the pain. The worker described that eventually they were unable to open a door or hold a cup. The worker noted that their symptoms still occasionally return but are managed with the stretches learned through physiotherapy.

The worker testified that prior to this job, they worked in another position with the same employer, that involved transporting people from place to place via a stretcher or wheelchair. The worker noted that job required “totally different body mechanics” and that they were able to return to that position upon recovery from this injury. The worker also noted that they left their concurrent employment shortly after their return to work from this injury and testified that the job duties in that position were much less physically demanding and slower paced.

In sum, the worker’s position is that the evidence confirms there was a relationship between the worker’s job duties and the initial onset of symptoms, and further, a relationship between the progressive worsening of symptoms through to early October when the worker reported injury, and those same job duties which the worker continued to undertake until removed from work by their physician. As such, the worker’s claim should be accepted, and the appeal granted.

Employer’s Position

The employer did not appear in the reconvened hearing but indicated its reliance upon the submissions and information provided in respect of the May 22, 2019 hearing as outlined in the transcript of that hearing. The employer’s position, as outlined in the May 22, 2019 hearing transcript, is that the WCB correctly determined that the worker’s claim is not acceptable.

The employer’s representative submitted that the unclear onset of difficulties, the numerous, diffuse and changing physical complaints involving widespread areas of the upper body, the two-month delay in reporting injury, the delay in seeking medical attention and time loss from work beginning two months later, makes it impossible to establish that a workplace injury occurred. The representative noted that the worker first stated they noticed symptoms at the end of July which were attributed to the general job duties but in an October 5, 2017 conversation with the WCB adjudicator, stated that the symptoms began on August 5, 2017 when the roller rack stopped working.

The employer’s representative noted that although the worker was noted to be wearing a tensor bandage at work in August 2017, the worker declined to complete an incident report at that time when suggested by their manager. Subsequently the worker continued to work their regular duties without complaint through September suggesting that there were no ongoing concerns.

The employer’s representative pointed out that the manager explained that the malfunctioning of the roller rack resulted in the worker having to “lift and carry…items weighing about six to nine pounds…a few steps more”, which would not be expected to result in any injury to the worker. Further, the employer’s representative noted that the worker was involved in training from July 12 to August 3, 2017, working full duties during approximately 8 of 18 shifts in total in that period. During training the worker would be mostly observing and not expected to do the full workload. The employer’s representative acknowledged that the worker’s job is demanding and busy but explained that the job is split between four roles with a variety of work duties and physical demands in each, broken up with breaks and other activities.

The employer’s representative also noted that there is little medical evidence on file to support the worker’s claim. The October 5, 2017 report from the treating physician describes the injury as being related to the worker’s multiple job responsibilities with objective findings in relation to the worker’s right wrist, bilateral epicondyle and decreased strength. The October 13, 2017 physiotherapy report noted heavy lifting and gripping as the cause of injury, with findings of cervical spine radiculopathy and a diagnosis provided of mechanical neck pain and right lateral epicondylitis. The October 18, 2017 physiotherapy report noted the worker was treated for right de Quervain’s tenosynovitis, neck pain, left lateral epicondylitis and mild right lateral epicondylitis. The treating physician’s report of October 19, 2017 does not note any objective findings but indicates improvement in symptoms from physiotherapy. Further, the medical reporting from January 29, 2018 indicates no objective findings and sets out that the worker is “overall improved”. The employer’s representative pointed out that the WCB medical advisor, in their October 20, 2017 opinion, noted inconsistencies in relation to the evidence of onset of symptoms and that it was unclear whether the worker’s concurrent employment contributed to the worker’s symptoms. The medical advisor further commented that the onset of symptoms in such a short time after the worker began new employment is not consistent with a cumulative mechanism of injury and the worker’s duties are unlikely to account for so many and varied pain complaints. The worker’s delay in seeking medical attention further confounds the challenges in establishing a causal relationship between the worker’s symptoms and their job duties.

In sum, the employer’s position is that the evidence is not sufficient to support a determination that the worker developed the variously diagnosed injuries to their upper body and limbs arising out of and in the course of their job duties. As such, the worker’s claim should not be accepted, and the appeal should be denied.

Analysis

The worker appeals from the Review Office decision that their claim is not acceptable. For the claim to be acceptable, the panel would have to find that the worker was injured as a result of an accident arising out of and in the course of their employment. As outlined in the reasons that follow, the panel was able to make such a finding and therefore, the worker’s appeal is granted.

The worker’s claim to the WCB is based upon injuries to their upper limbs, neck and back that they believe arose out of and in the course of their employment. As set out in the WCB Policy, an injury arises 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” and occurs in the course of employment if it “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.” The worker’s position is that they developed various upper limb, neck and back conditions arising out of the physically demanding and repetitive job duties they took on beginning on July 12, 2017 with a period of some two weeks of training, followed by full-time work in the new role. The worker’s evidence is that by late July they were already experiencing some symptoms that they at first attributed to muscle soreness and stiffness that typically can come with new activities and soon disappears, but that these symptoms did not disappear and in fact, worsened over time.

The evidence as to the worker’s job duties, provided by the employer and described by the worker in some detail, outlines a range of daily tasks that vary according to the specific role the worker is assigned to on any given day, but that include moving about the workspace bringing items to be cleaned to the washing machine, loading that machine at a fast pace, lifting and carrying heavy items, disassembling and assembling some heavy tools for cleaning, cleaning the overall work area with a long heavy gauge hose, transporting loaded carts from one building to another through sloped passageways, and more. Based on the evidence heard and reviewed, we find that the worker’s job duties are physically demanding and that the pace of the work is such that the worker had few opportunities for breaks or rest throughout the shift.

The worker also described having to lift items of varying sizes and weights up and over a ledge on the non-functioning roller rack, situated above the worker’s shoulder level and then carrying these to the cleaning station. This would happen repeatedly throughout the workday, with other activities interspersed from time to time. The evidence confirms that this roller rack was non-functioning from early August 2017 through to after the worker was removed from work due to their injuries. Based upon the photographs contained in the WCB file, provided by the worker and upon the worker’s description of how they had to accommodate the non-functioning roller rack while still completing all their usual job duties, the panel finds that this malfunctioning equipment created a hazard resulting from the conditions of the worker’s employment.

We note the evidence that the worker was experiencing symptoms in their arms at work as early as late July 2017, and as a result, in August, began wearing a brace on their right arm. The worker confirmed that they did not experience these symptoms in their prior or concurrent work, and further that they were not involved in any other incident or event to have caused injury to their right arm. While the worker did not seek medical treatment until early October, 2017, the evidence indicates the worker self-treated beginning in August, 2017. The medical reporting confirm that the worker initially reported right hand and wrist as well as left side and bilateral elbow injuries, with symptoms that worsened with activity and prior use of tensor and anti-inflammatory medication.

The treating physician initially recommended the worker remain off work for one week and subsequently extended that leave further, providing a diagnosis of repetitive strain injury – tendonitis on October 12, 2017. At physiotherapy assessment on October 13, 2017, the clinical findings were consistent with the diagnosis of right lateral epicondylitis and mechanical neck pain, which the worker reported had developed in August 2017 due to “repeated heavy lifting & gripping.”

The panel considered the WCB medical advisor’s October 20, 2017 opinion that the absence of a “unifying diagnosis” to account for all the worker’s symptoms, the development of those symptoms shortly after the worker started their new job and delay in reporting “confounds” the difficulty in establishing causation, and as such concluded it was improbable that the worker’s job duties would medically account for the worker’s symptomatic presentation. We note that the medical advisor considered that the worker began their duties on July 25, 2017 but the evidence confirms that the worker moved into this role on July 12, 2017. We note that the medical advisor had questions as to whether the worker’s concurrent employment had contributed to their symptom development but note that the evidence supports that the worker’s symptoms developed during their new work placement and were not previously reported in relation to the worker's concurrent job.

The panel is satisfied that the evidence supports a finding that the worker’s symptoms related to their upper limb and neck regions arose in the course of their undertaking their job duties in a highly physically demanding job that involved long hours, heavy workload and few breaks. In making this finding, we accept the worker’s testimony that their job duties in their previous role with the employer as well as their duties in their concurrent employment did not require the same sort of body mechanics and as such, are unlikely to have played any role in the development of the worker’s symptoms.

The panel noted that although the WCB found the worker delayed in reporting injury, there is evidence that the employer was aware, as early as some time in August 2017 that the worker was experiencing symptoms while at work and even asked the worker if they wished to make an incident report in relation to those symptoms. We find the worker’s explanation credible in relation to why they delayed in making a formal report and seeking medical attention. It was not unreasonable, although with hindsight it may have been imprudent, to continue in the new role and try to adapt to the physical demands of that role before seeking treatment.

The panel also considered whether there is evidence that the worker’s injuries did not arise out of their employment. While we accept the WCB medical advisor’s view that it is difficult to establish a causal relationship when there is not a “unifying diagnosis”, we do not agree that it is essential that there be a confirmed diagnosis in order to establish that a worker has sustained injury arising out of their employment. In this case, there is evidence of a significant change in the worker’s job duties and work environment, with the worker taking on a more physically demanding and faster paced workload with limited opportunities for rest or breaks within the workday and that, and on the balance of probabilities, the worker did sustain injury to their upper limbs and neck regions arising out of those duties. While initially the injury may have been relatively minor, the worker continued in those duties for approximately two months before seeking treatment and in the interim, completed their work in the presence of malfunctioning equipment that created an additional hazard resulting from the conditions of the worker’s employment. The panel finds that, more likely than not, this additional hazard in relation to the malfunctioning roller rack caused further injury or exacerbated the initial injury such that by the time the worker sought medical attention on October 5, 2017, they were found to be unable to continue in that work.

On the basis of the evidence before the panel, we are satisfied that the worker was injured arising out of and in the course of this continuing participation in their new job duties after July 12, 2017 through to October 5, 2017. As such, we find that the worker was injured as a result of an accident and therefore the claim is acceptable. The worker’s appeal is granted.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 21st day of April, 2023

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