Decision #97/24 - Type: Workers Compensation
Preamble
The worker appeals from the decision of the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on October 8, 2024 to consider the worker's appeal.
Issue
Whether or not the claim is acceptable.
Decision
The claim is acceptable.
Background
The WCB received a Doctor First Report for a virtual appointment on July 15, 2021 indicating the worker reported injuring their right wrist at work on the same date. It was noted the worker was “lifting heavy objects and in the process felt a sharp pain in R (right) wrist" that radiated to their shoulder area. The treating physician recorded the worker's complaints of pain with wrist movement, numbness but no swelling or redness and diagnosed a wrist sprain, recommending anti-inflammatory medication and treating with ice. A July 16, 2021 Doctor's Progress Report indicated the same mechanism of injury as described in the prior report and noted the worker's report of pain in their shoulder down to their wrist/hand for 2 months, which was waking them at night with throbbing pain in their wrist and fingers. The physician noted the worker reported they had similar pain and discomfort in their left hand the week previous. On examining the worker, the physician noted mildly reduced range of motion of the worker's right wrist, with some tenderness, right shoulder tenderness on wrist movement, and reduced grip strength. Right shoulder examination indicated a normal, neurovascularly intact shoulder. The physician diagnosed right wrist and shoulder strain and queried cervical radiculopathy, recommending the worker remain off work for 1 to 2 weeks.
In their Worker Incident Report to the WCB dated July 19, 2021, the worker reported injury to their arms on July 15, 2021, when lifting a heavy object near the end of their shift, resulting in sharp pain in both wrists, which radiated to the shoulder on the right side. The worker described that both hands felt numb and started shaking afterward, such that when they reached the supervisor's office to complete an incident form, they had difficulty holding the pen. The WCB received an Employer's Accident Report on the same date, which noted an injury to the worker's right wrist and right shoulder after the worker was loading parts weighing three pounds into a machine on July 15, 2021 and felt pain in their wrist and shoulder. The employer advised they offered the worker alternate, modified duties, but the worker refused those duties.
On July 20, 2021, the worker had a virtual follow-up visit with their treating physician, reporting improvement in sensation to their fingertips and fine motor coordination, with continued stiff and painful hands. The physician referred the worker to a neurologist.
When the WCB contacted the employer on July 21, 2021, the employer confirmed the worker began working on May 3, 2021, with duties involving loading and unloading parts that range in size from three to four pounds, with hoists available at each work area for parts over forty pounds. The employer further noted the worker had always worked with parts under twenty pounds. On the same date, the worker advised the WCB that pain in their right wrist and shoulder began two months previously, and on the left, three weeks previously. The worker confirmed they started working on the machinery on May 10, 2021 and two weeks later, began experiencing pain in the wrists and shoulder. The worker indicated their belief that their difficulties were due to the repetitive movement of their job duties and the weight of the parts they work with. The worker noted on July 15, 2021, they were working with parts that weighed a total of fifteen pounds and they had worked with fifty pieces at that weight before beginning work on the three to four pound parts. The worker also noted that in some cases they need to use one hand to hold the part in place and the other hand to put the part into the machine. The worker described having to manually align approximately 20-30% of the pieces. The worker reported current symptoms of sharp pain in their wrists, radiating to their shoulder, and numbness and tingling in their fingers.
When the worker attended a physiotherapy assessment on July 22, 2021, the physiotherapist recorded the worker's report of pain in their shoulders while operating machinery approximately two weeks earlier, with the pain increasing the previous week "…to sharp in nature into wrists and shoulders." The physiotherapist noted the worker’s complaints of sharp pain in the volar aspect of both wrists, that shoots up the worker’s arms into their shoulder blades, tingling in their hands and constant numbness in the tips of their fingers, difficulty holding onto object and grasping and gripping with their hands, and an inability to fully straighten their fingers without feeling an intense pull in their wrists, all of which were aggravated by carrying heavy objects. The worker reported the symptoms were worse in their right arm than their left. On examining the worker, the physiotherapist found decreased active range of motion in the worker’s right shoulder, full active range of motion in the worker’s fingers with a positive pull into the volar wrist and forearm, greater on the right, positive Spurling test on the right, and positive Tinel’s testing bilaterally. The physiotherapist diagnosed bilateral carpal tunnel syndrome with nerve mechano-sensitivity at the cervical/shoulder level. The physiotherapist indicated that a return to work at this time would exacerbate the worker’s symptoms due to the worker’s repetitive job duties and recommended two weeks off work with active physiotherapy treatment.
At a virtual appointment with the treating physician on July 29, 2021, the worker reported some symptom improvement with no pain to their shoulders and wrist pain only with repetitive motion, but no improvement in their reported fingertip numbness, nor soreness and discomfort in their shoulder blades when lifting their hands above their head. The physician noted the worker was not yet seen by the neurologist and recommended further time off work.
On assessing the worker on August 9, 2021, the neurologist noted the report of pain and paresthesia in both hands and wrists, which began after they started working for the employer in May 2021. The worker described sharp, shooting pain in all their fingers that radiated to their shoulders with the right upper extremity symptoms being worse than the left. The worker described an increase in pain and numbness while performing their job duties or lifting heavier objects and noted a decrease in their symptoms since they had been off work. On examination, the neurologist found normal cervical, scapulothoracic, elbow and wrist and finger ranges of motion, but noted tenderness in the second to fifth fingers on the right and the second finger on the left, with mild tenderness at the lateral epicondyles bilaterally. The neurologist also recorded full bilateral elbow flexion and extension, wrist extension, and finger and thumb abduction. Testing for subacromial impingement, rotator cuff tendinopathy, acromioclavicular dysfunction and bicipital tendinopathy elicited discomfort in the worker’s shoulders, more pronounced on the left. Electrodiagnostic testing indicated a mild to moderate medical neuropathy at the right wrist, and there was clinical suspicion of an inflammatory arthropathy that required further investigation.
On August 12, 2021, the worker followed up virtually with the treating physician, noting improvement in pain to both hands and shoulders, with less numbness in their fingers. The physician noted the treating neurologist did not recommend work restrictions and suggested the worker may consider modified work duties or retraining.
A WCB medical advisor reviewed the worker’s file on August 18, 2021 and noted the current diagnosis of possible inflammatory arthritis with electrodiagnostic evidence of mild right median neuropathy. The medical advisor found the worker’s symptoms were atypical and noted the clinical findings were not consistent with the diagnosis of right median neuropathy. The medical advisor concluded there was insufficient evidence for a specific diagnosis as inflammatory arthritis could cause median nerve compression. The WCB medical advisor also noted that median neuropathy was caused by compression of the nerves in the wrist, which could be caused by a range of factors including strong repetitive grasping and twisting with vibration exposure and awkward wrist positioning, thyroid disease, or inflammatory arthritis. The medical advisor outlined that inflammatory arthritis could arise without any clear cause but would not be medically accounted for by the worker’s job duties, and as such concluded that if the worker is diagnosed with inflammatory arthritis, it would be a pre-existing condition.
On August 24, 2021, the WCB advised the worker that the claim was not acceptable as it determined the worker’s difficulties were not medically accounted for in relation to their job duties.
The worker’s representative contacted the WCB on September 15, 2021, confirming recent blood tests ruled out a diagnosis of inflammatory arthritis, and requested the WCB reconsider its decision that the claim was not acceptable. A subsequent report from the treating physical medicine specialist indicated the worker was seen on September 13, 2021 with complaints of bilateral hand numbness and to rule out inflammatory arthritis. Based on the clinical examination findings, the specialist concluded the worker had mild to moderate medial neuropathy at their right wrist with no evidence of ongoing inflammatory arthropathy.
A WCB medical advisor reviewed the worker’s file, including the new medical information on October 13, 2021 and concluded the current diagnosis was mild right wrist carpal tunnel syndrome (“CTS”), with clinical testing having ruled out other medical conditions that could cause CTS. The medical advisor outlined the occupational activities that could contribute to the development of CTS were “…strong frequent or repetitive grasping and twisting with vibration exposure and to a lesser extent awkward wrist positioning” and noted there was no evidence that the worker had a pre-existing condition.
On October 19, 2021, the worker provided details of their job duties to the WCB, noting those duties involved forceful gripping or grasping. The worker also provided the names of coworkers and their lead hand for the WCB to gather more information. The worker noted they had not returned to work based on medical advice. On the same date, the WCB spoke with the lead hand who indicated the job duties did not involve the use of force but advised of their belief that the worker was performing their job duties incorrectly, and had only performed those duties for one day, for approximately 45 minutes near the end of their shift, noting the employer only got this type of work very rarely, possibly only once a month. The lead hand advised the WCB they had noted the worker had gone to their supervisor in tears near the end of their shift on May 25, 2021 and was advised to submit a report. On October 21, 2021, in a discussion with the WCB, the worker advised they were small in stature and as such, required to use forceful gripping to complete the job duties assigned to them. On October 22, 2021, the employer submitted a video to the WCB to demonstrate how the worker’s job duties were performed.
The WCB wrote to the worker on October 27, 2021 advising there was no change to the decision their claim was not acceptable.
On June 6, 2022, the worker submitted further details regarding their job duties, noting some of the details provided by the employer regarding their job duties were incorrect and provided clarification of those duties. The worker also submitted a May 18, 2022 report from the physical medicine specialist indicated the worker’s report of repetitive grasping and twisting with heavy tools while at work and supporting the worker’s claim their symptoms resulted from their employment. The specialist noted that while the worker was off work, their symptoms had improved. The worker also submitted a letter from a former coworker in support of the worker’s claim. The letter did not provide details of the worker’s job duties but did note the worker had reported injuring their wrist while at work, which the coworker advised the worker to report to their supervisor. The WCB provided a copy of the worker’s submission to the employer on June 9, 2022.
On June 22, 2022, the employer advised the worker’s statement regarding the weight of the parts they were working with were correct, however, the equipment used at the time required the use of a lift device for objects over 40 pounds, and workers were encouraged to use that device for any objects as needed. The employer also clarified that if the parts the worker was working with were properly placed, little adjustment or realignment would be necessary, but that even if required, there are tools available to assist with that task. Lastly, with respect to the worker’s statement about being required to work on larger pieces most of the time, the employer advised the WCB work assignments were not allocated based on the physical attributes of the workers.
On June 29, 2022, the WCB wrote to the worker advising that the additional information was reviewed and there was no change in the decision that their claim was not acceptable. On January 11, 2023, the worker requested Review Office reconsider the WCB’s decision, including with their submission a video reconstruction of their job duties and a letter from a physician with an interest in occupational medicine dated December 6, 2022. On January 17, 2023, Review Office returned the worker’s file to the WCB’s Compensation Services for consideration of the latest information. On January 23, 2023, the WCB wrote to the worker indicating the latest information was reviewed but there would be no change to the decisions that the claim was not acceptable. On May 15, 2023, the worker again requested Review Office reconsider the WCB’s decision, outlining in their submission the information in the WCB claim file which they believed to be inaccurate. The worker relied on the December 6, 2022 report from the physician with an interest in occupational medicine which indicated they sustained a “…repetitive strain injury initially to your right arm which is likely related to the ergonomic factors at work, coupled with your short stature” and supported that the worker’s claim was acceptable, and they were entitled to benefits. On June 27, 2023, the employer provided a submission in support of the WCB’s decision, and the worker provided a further response on July 27, 2023.
On July 31, 2023, Review Office determined the worker’s claim was not acceptable as the evidence did not support a finding that the worker sustained an injury arising out of or in the course of their employment. The worker’s representative filed an appeal with the Appeal Commission on April 9, 2024 and a 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, regulations, and policies in effect on the dates of the accidents apply to this claim.
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. 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 “Arising Policy”) sets out 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, and supported by their spouse. The worker advisor outlined the worker’s position in a written submission provided in advance of the hearing, and the worker and their spouse provided testimony through answering questions posed by the worker advisor and members of the appeal panel.
The worker’s position is that the claim is acceptable as the evidence supports the finding that the worker sustained injury to their right arm arising out of and in the course of undertaking their job duties. The worker advisor submitted that the medical evidence supports the conclusion that the worker’s job duties caused or contributed to a repetitive use strain injury to their right arm or caused or contributed to the development of right median neuropathy or aggravated the worker’s injuries.
The worker advisor noted the worker did not delay in reporting injury to the employer nor in seeking medical attention in respect of their injuries.
The worker advisor urged the panel to give greater weight to the worker’s video re-enactment of how they undertake their job duties and to their testimony, than to the employer’s video of those tasks.
Employer’s Position
The employer was represented in the hearing by an advocate and supported by its vice president of human resources, a health and safety supervisor and a process engineer. The advocate provided an oral submission outlining the employer’s position and the process engineer offered testimony through answers to questions posed by members of the appeal panel.
The employer’s position is that the claim is not acceptable as the evidence does not indicate that the worker’s condition is the result of an accident, as defined in the Act, arising out of and in course of their job duties.
The employer’s advocate submitted that the short duration of the worker’s employment before the reported symptom onset does not support a finding that the worker’s diagnosed condition of right CTS arose out of and in the course their employment. Further, this work does not require the combination of repetitive, forceful gripping and grasping that is typically associated with the development of CTS. The advocate also noted the evidence that the worker experienced wrist and hand symptoms both at work and at home and pointed out that the worker meets several of the risk factors for development of CTS.
The advocate further submitted that the evidence also does not support the worker’s position that they sustained a repetitive strain injury arising from their job duties, noting there is significant variability from day to day in the pacing of tasks and weight and size of the items the worker handled in the course of their work.
As such, the employer’s position is that the evidence does not lead to the conclusion that the worker sustained an injury arising out of and in the course of employment, and therefore, the claim should not be accepted.
Analysis
The question in this appeal is whether the claim is acceptable. For the worker’s appeal to succeed, the panel would have to determine that the worker sustained an injury arising out of and in the course of their 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 panel considered whether there is evidence of an accident, as defined by the Act, as arising out of and in the course of employment that resulted in injury to the worker. The evidence establishes that while at work and undertaking their regular job duties, the worker reported to the employer on July 15, 2021 that they felt sharp pain in both wrists that radiated into their shoulder, following which their hands felt numb and began shaking, with reduced strength. The employer’s report confirms that the worker reported an injury on this date. The evidence also confirms the worker was capable of undertaking and completing, to the employer’s satisfaction, their job duties until that date but by the end of that day, was not able to continue with their work. The evidence confirms the worker began this employment on May 3, 2021 and after one week’s training, began working on their own, with symptoms of soreness appearing around two weeks later, but that the worker did not think it necessary to seek medical attention at that time, as they initially attributed their symptoms to ordinary muscle soreness arising from working in a new job. Rather, the worker continued working and meeting their productivity targets, until they reported injury to their supervisor on July 15, 2021. We rely on this evidence to find that the worker’s symptoms arose in the course of their employment.
The panel also considered whether the evidence supports the finding that the worker’s injury arose out of their employment. The panel noted the evidence that the worker first noted pain in their right wrist and shoulder within weeks after starting their job but could perform their job until July 15, 2021; however, they were not able to do so after that date, due to the significant increase in their symptoms that day as reported. The evidence also confirms that the worker’s job duties required extensive use of both hands and arms throughout each shift while undertaking a range of job duties that include lifting and setting into place steel objects of various sizes and weights, adjusting the position of those objects on a roller apparatus, operating a hoist to lift and place heavier objects, removing welding spatter from those objects as necessary and by various manual means, occasional light hammering, occasional prying and gripping of steel objects, and pushing heavy carts containing materials. While the evidence confirms variation in the worker’s day to day duties and the degree of force and weight required to complete the various tasks assigned to the worker, we also noted the evidence confirms the worker’s symptoms began to improve soon after they were removed from those duties by the treating physician. The panel finds this supports the worker’s position that their symptoms were caused by or increased by their job duties.
The panel further noted there is no evidence of a specific incident or event that could have caused the worker to experience these symptoms at work, nor is there any evidence of a non-occupational cause for the sudden increase in the worker’s symptoms while at work on July 15, 2021.
The medical reporting confirms the worker sought medical attention by virtual appointment on July 15, 2021, the day they reported injury, and the physician recorded the worker’s report of an injury to their right wrist, radiating into their shoulder, while lifting objects at work, and the next day, the physician recorded clinical findings of mildly reduced range of motion in the right wrist with some tenderness, right shoulder tenderness on wrist movement and reduced grip strength. The physician also noted the worker’s report of shoulder pain down to their wrist and hand over the previous two months, waking at night with throbbing pain in their wrist and fingers and similar pain in their left hand beginning the previous week. As a result, the physician recommended the worker be off work for 1-2 weeks and begin physiotherapy. The treating physician’s chart for July 20, 2021 indicates the worker’s report of improvement of symptoms in terms of sensation to fingertips and fine motor coordination. The physiotherapy assessment of July 22, 2021 outlined clinical findings including positive bilateral Tinel’s sign, reduced grip in the right wrist, right cervical spine and shoulder symptoms with range of motion testing, and pain at based of right neck and shoulder with Spurling’s testing. The physiotherapist also recommended the worker remain off work for two weeks, suggesting that “…a return to work at this time would most likely exacerbate symptoms as [the worker’s] job involves repetitive use of arms/lifting and maneuvering pieces.”
The panel noted that various diagnoses were initially proposed to account for the worker’s symptoms, and investigations were undertaken over the subsequent months to rule out or confirm those proposed diagnoses, the medical reporting does not call into question a relationship between the worker’s job duties and the development of symptoms. The panel also noted the subsequent medical reports indicate the worker received a diagnosis of mild right CTS, and that suggest diagnoses of shoulder strain and wrist strain, while ruling out a diagnosis of inflammatory arthritis. We further noted that although the WCB determined that CTS was not caused by the worker’s job duties, the WCB did not investigate or determine if this condition, whether pre-existing or concurrent, was aggravated or enhanced by the worker’s job duties, as argued by the worker. We also noted that the WCB has not made any determination in relation to the proposed diagnoses of shoulder strain and wrist strain. The panel makes no specific findings in this regard.
A specific diagnosis is not essential to establish that a worker has sustained injury arising out of their employment. We are satisfied based on the evidence before us, including medical reporting nearest the date of the reported injury, that the worker sustained injury to their right upper limb in the course of and arising out of their job duties on July 15, 2021.
Based on the evidence and on the standard of a balance of probabilities, we find that the worker sustained an injury arising out of and in the course of their employment, and as such, the worker’s claim should be accepted. 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 4th day of November, 2024