The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on September 27, 2023 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

On December 14, 2022, the worker filed a Worker Incident Report with the WCB reporting an injury to their right elbow that occurred at work on November 12, 2022. The worker stated their belief that the nature of their job duties, which include pulling, pushing, gripping, and bending caused a repetitive strain injury to their right elbow. The worker further noted their initial belief that the injury to their elbow was no more than normal aches and pain until it progressed to a point where their fingers would go numb, they could not pick up items without dropping them and the pain would keep them up at night. The worker advised that they worked through the pain until they reported it to their supervisor on December 13, 2022. The worker further advised their coworkers were aware of their elbow difficulties for “…a couple of weeks.”

The employer submitted an Employer’s Accident Report to the WCB on December 19, 2022. The employer noted that the worker did not mention a specific incident but related their right elbow difficulties to their overall job duties and further, that the worker reported to the employer that their difficulties worsened such that by the first week of December 2022, the worker had difficulty in picking up items with their right hand. The employer reported they were able to accommodate restrictions as determined by the treating healthcare providers.

When the WCB contacted the worker on January 6, 2023, the worker confirmed their symptoms began in November 2022 and that they related the symptoms to the constant pushing and pulling of equipment. The worker noted they usually worked with a partner, pushing, and pulling the equipment. The worker did not recall any specific incident and noted there had not been any increase or change in their duties. The worker confirmed attending physiotherapy treatment but stated they had not noticed improvement as a result.

In a report from the worker’s treating physician for an appointment on December 28, 2022, the physician recorded the worker’s report of worsening right tennis elbow issues with mild numbness and pain that woke them at night. On examining the worker, the physician found full range of motion in the worker’ right elbow, no swelling, tenderness to the lateral epicondyle and resisted wrist and third finger extension. The physician provided a diagnosis of right lateral epicondylitis.

On initial physiotherapy assessment on January 6, 2023, the worker described right-sided elbow pain for approximately 3 months with worsening symptoms over the previous 3 weeks. The worker did not note any specific trauma or incident but related their difficulties to “…heavy lifting and pushing/pulling at work.” The worker also reported difficulty sleeping and tingling in the fingers. On examination, the physiotherapist found full flexion and extension of the worker’s elbow with tenderness at both end ranges and limited supination. They noted active wrist extension was limited and painful, and passive wrist flexion combined with full elbow extension was very painful and not full. Strength testing was noted to be weak and painful. The physiotherapist diagnosed chronic right lateral epicondylitis/forearm strain and provided restrictions that included lifting to 20 pounds, limit over shoulder level work and highly repetitive use of the right arm, no ladder use, pushing up to 50 pounds.

The worker advised the WCB on January 20, 2023 that they returned to work at their regular hours on modified duties but did not specify when that occurred. On January 26, 2023, the employer provided to the WCB a description of the worker’s position and further information on the equipment used by the worker. The employer further confirmed there had not been any increase in the worker’s job duties and that the worker had not made any ongoing complaints about their right elbow prior to December 2022.

On January 26, 2023, the WCB advised the worker of its decision that the claim was not acceptable. The WCB advised the worker that while there were some repetitiveness to their job duties, it had determined the worker’s job duties did not involve forceful repetitive motions of their hands and arm such as could cause lateral epicondylitis and as such, a causal relationship between their right elbow difficulties and those duties could not be established.

On March 21, 2023, the worker requested Review Office reconsider the WCB’s decision to deny their claim. The worker include in their submission a letter from the treating physiotherapist and noted their job duties involving pushing/pulling and heavy repetitive lifting that they had performed for 12 years had caused them to develop lateral epicondylitis in their right elbow. On May 11, 2023, Review Office upheld the WCB’s decision that the claim was not acceptable. Review Office accepted that the worker’s job duties were physical and involved pushing, pulling, and moving heavy loads but found the evidence did not indicate those duties involved a combination of force and repetition associated with the development of lateral epicondylitis. Further, Review Office noted the worker had performed the same job duties for 12 years and concluded that if those duties could cause the worker’s elbow symptoms, those difficulties likely would have arisen sooner.

The worker filed an appeal with the Appeal Commission on June 1, 2023 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. After receiving the requested information and providing it to the parties for comment, the appeal panel met on January 3, 2024 to further discuss the case and render its final decision.

Reasons

Applicable Legislation

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

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has sustained “personal injury by accident arising out of and in the course of the employment”. Section 1 of the Act defines accident as a chance event occasioned by a physical or natural cause, or a wilful and intentional act that is not the act of the worker, or an event or condition, or a combination of events or conditions, related to the worker's work or workplace, that results in personal injury to a worker.

Worker’s Position

The worker appeared in the hearing on their own behalf, providing an oral submission as well as testimony, through answering questions posed to them by members of the appeal panel.

The worker’s position is that as a result of undertaking their regular job duties, over the course of many years, which require pushing, pulling heavy equipment on level and sloped surfaces, and lifting heavy and awkward loads on and off that equipment or repositioning those loads on that equipment, they have developed a repetitive use injury to their right elbow, diagnosed as lateral epicondylitis. As this injury arose from carrying on their regular job duties, the claim should be accepted.

The worker described in their submission the job duties that they regularly undertake in their work with the employer, in a position the worker has held for some twelve years. The worker recalled first noticing pain in their right arm beginning in November 2022 but stated that they thought little of it until the symptoms worsened over the course of the subsequent three weeks. The worker described increasing inflammation in the elbow joint with use of their right arm, to the point where the worker could not pick up a soup can. The worker stated they sought physiotherapy in December 2022 and saw a sports medicine physician in the same month. The worker also testified that they were on vacation from December 15-26, 2022 during which time they did not engage in usual activities. With modified duties, the worker testified that their symptoms improved, and they were able to return to work on full duties in early February 2023.

The worker described using a brace to control their symptoms as well as using ice to reduce inflammation.

The worker described their job duties in detail, as well as outlining their work hours and schedule information. The worker submitted that tennis elbow can develop because of trauma to the epicondyle, through repetitive forceful motion or insidiously, and stated their belief that they developed the condition as a result of the repetitive forceful motions they described making daily in the usual course of their job duties.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The worker’s appeal arises from the WCB’s decision that their claim is not acceptable. For the worker’s appeal to succeed, the panel would have to determine that the worker sustained injury to their right elbow arising out of and in the course of employment. As detailed in the reasons that follow, the panel was able to make such a finding and therefore, the worker’s appeal is granted.

The worker argued that while undertaking their regular job duties, which are repetitive and require forceful grasping motions, they developed lateral epicondylitis in their right arm. The panel noted that the medical reporting confirms that the worker received a diagnosis of right lateral epicondylitis in December 2022, which their treating medical providers attributed to the worker’s job duties. The panel also noted the evidence that the worker’s symptoms improved with time off work and undertaking light or modified duties. The treating physiotherapist reported on February 23, 2023 that based on the nature of the worker’s daily job duties, “…a forearm/elbow injury could result from doing this on a full time, long term basis. [Their] presentation to us for evaluation and treatment, while quite acute was consistent and appropriate for the injury and the reports of the [onset] of the injury were also consistent.”

Following the hearing, the panel sought further clarification from the WCB medical advisor as to whether the job duties described by the worker in their testimony and outlined in the file information provided by the employer could have caused or contributed to the worker’s development of right lateral epicondylitis. The WCB Plastic Surgery Consultant set out in their opinion dated October 25, 2023 that “When lateral epicondylitis develops in relation to cumulative activities, it is typically associated with activities involving a combination of repetitive and forceful grasping” and noted that the worker’s job duties as described on file “appear to have involved forceful grasping.” The plastic surgery consultant further noted that high repetition is “…defined as a cycle time of less than 30 seconds or more than 50% of the cycle time involved in performing fundamentally the same activity” and concluded that there was evidence that the worker spent approximately 50% of their time in performing repetitive tasks that involved forceful grasping. As such, the medical advisor concluded that “…it is medically plausible that the (sic) given the force involved and the frequency of the transfers, that the work duties described could have contributed to the development of right lateral epicondylitis.”

The panel accepts and relies upon the medical evidence before us, including that of the treating providers and the WCB consultant. That evidence supports a finding that the worker’s right lateral epicondylitis was the result of the worker undertaking repetitive and forceful work activities involving their right arm, as described by the worker in their testimony.

Based on the evidence and on the standard of a balance of probabilities, we are satisfied that the worker sustained an injury arising out of and in the course of their employment activities. Therefore, the worker’s claim is acceptable, and 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 26th day of January, 2024