Decision #107/24 - Type: Workers Compensation
Preamble
The worker appealed the decisions of the Workers Compensation Board ("WCB") that:
1. Accident of August 17, 2021: The claim is not acceptable.
2. Accident of November 4, 2021: The claim is not acceptable.
A hearing was held on July 24, 2024 to consider the worker's appeal.
Issue
1. Accident of August 17, 2021: Whether or not the claim is acceptable.
2. Accident of November 4, 2021: Whether or not the claim is acceptable.
Decision
1. Accident of August 17, 2021: The claim is not acceptable.
2. Accident of November 4, 2021: The claim is not acceptable.
Background
Accident of August 17, 2021
The worker filed a Worker Incident Report on January 17, 2022, reporting injury to their right elbow that occurred at work on August 17, 2021 as a result of their repetitive job duties. The worker reported their symptoms, initially noticed in August 2021, worsened over time, that co-workers and customers knew about their injury, and that they had previously had tennis elbow in the past but worked through it. In the Report, the worker noted they returned to work on January 10, 2022 after being off because of another injury and worked three days, but then did not return due to their elbow and arm pain.
On January 17, 2022, the WCB received a physiotherapy report for the worker's appointment on January 13, 2022, noting the worker reported pain in their right elbow over the past five months and that the worker slipped on an elevated loading dock in November, resulting in greater pain in their lateral elbow. The worker reported that their pain worsened with repetitive use, heavy lifting, pushing, and pulling. The treating physiotherapist noted painful elbow and wrist flexion and extension, and spasms on wrist extension, and diagnosed lateral epicondylitis. The physiotherapist recommended workplace restrictions of repetitive use as tolerated and no lifting, pushing or pull of greater than ten pounds.
On January 12, 2022, the WCB received the Notice of Injury to Employer completed by the worker that day, indicating ongoing tennis elbow that became severe. The employer submitted an Employer's Accident Report on January 18, 2022, noting the worker’s report of ongoing elbow pain for five months that became severe but no specific incident. On January 20, 2022, the employer provided a description of the worker's job duties, noting the worker had two positions with the employer, the first involving driving to customer locations after loading a vehicle with items for delivery and stocking and filling shelves as required, and the second tidying customers' shelves and restocking, as necessary. The employer noted the worker performed both roles for many years and there were no changes in how those duties were performed.
The worker sought care from their family physician on January 13, 2022, reporting right elbow pain for a few months from repetitive work, which flared up around mid-August 2021 “after lifting and a slip”. The physician noted the worker's complaints of right elbow pain when lifting or holding with their right hand and recorded tenderness in the lateral epicondyle, with full range of motion in the right elbow and no redness or swelling. They recommended treatment with bracing, non-steroidal anti-inflammatories and physiotherapy, and diagnosed right lateral epicondylitis. In follow-up on February 1, 2022, the physician noted the worker reported continuing right elbow pain and that the worker declined to return to work until fully recovered. The physician recorded clinical findings of right lateral epicondyle tenderness and normal elbow range of motion.
When the WCB contacted the worker on February 2, 2022, the worker confirmed having ongoing elbow pain for approximately five months and tennis elbow previously, which they worked through and did not report to the employer or to the WCB. The worker described current elbow soreness and being unable to pick up a coffee cup to drink from it, noting they rely on their left hand more as a result. The worker provided details of their job duties, which include unloading a truck and bringing stock into customer locations on a dolly, carrying items on trays and putting the items onto shelves, rotating the stock for customers. The worker stated that at one point, they had a helper due to their injury.
On February 2, 2022, the WCB contacted the helper who confirmed they assisted the worker a couple of months earlier when the worker hurt their hand, but they were not aware how it happened or what the injury was. The WCB also contacted another co-worker who confirmed they noticed the worker struggling and in a lot of pain about three weeks earlier, but they could not confirm which arm the worker was having difficulty with. The WCB also spoke with one of the worker's supervisors who stated that the worker complained of difficulties with their elbow since the second week of November 2021 and that they noticed the worker favouring their right arm. The supervisor reported that the worker indicated to them it was tennis elbow which they had previously, and it would go away. The supervisor advised the worker to seek medical treatment for the injury but a few weeks later, they noticed the worker continued to favour it, although they advised it was getting better. The supervisor also confirmed the worker did not state their elbow difficulties related to their job duties.
A WCB medical advisor reviewed the worker’s file on February 3, 2022, including the job duty descriptions provided by the employer and the worker. The medical advisor noted some of the worker's duties would involve intermittent periods of repetition but did not involve significant force and that some duties involved intermittent periods of brief forceful wrist loading and intermittent periods of repetitive but light movements. The medical advisor concluded it was unlikely the worker would have developed lateral epicondylitis from those duties, which they had performed for a number of years.
On February 8, 2022, the WCB advised the worker that the claim was not acceptable as it could not establish the worker sustained an accident at work as defined in the Act.
On December 22, 2022, the worker's representative requested Review Office reconsider the WCB's decision, noting the medical evidence on the worker's file supported a cause and effect relationship between the worker's right elbow difficulties and their job duties. The representative also noted the onset of the worker's difficulties while performing two jobs with the employer that involved repetitive lifting and carrying and the worker had a history of working seven days a week, taking no time off to rest.
On January 12, 2023, Review Office found the worker's claim was not acceptable.
Accident of November 4, 2021
On March 2, 2022, the worker wrote to the WCB detailing an incident that occurred at work on November 4, 2021 when they fell off a loading dock and injured their right arm, which they described as already compromised with tennis elbow. The worker advised that they contacted their supervisor shortly after the incident, who requested the worker speak with them after their shift to discuss the incident. The worker reported they also requested surveillance video of the incident be provided to them. The worker confirmed they modified their actions while performing their job duties to continue working, until their symptoms became worse to the point they sought medical treatment. The worker submitted a Worker Incident Report on March 16, 2022, reporting injury to their right elbow and arm and setting out the mechanism of injury as described on March 2, 2022.
The employer submitted an Employer’s Accident Report on March 18, 2022, indicating they were not aware of an incident that occurred on November 4, 2021, noting the worker had a previous WCB claim with an incident date of November 1, 2021. The employer further noted that in their January 12, 2022 Notice of Injury to Employer, the worker described ongoing pain in their elbow for five months, now severe.
On March 29, 2022, the worker provided the WCB with background information from their previous WCB claim, noting they had issues with their right elbow and arm since August 2021, but the November 4, 2021 fall aggravated those symptoms. The worker advised the treating physiotherapist believed a traumatic injury occurred when they fell off the dock. The worker further advised their job involved repetitive duties and they had tennis elbow previously that had “come and gone.”
On the same date, the WCB received the Doctor First Report for the worker’s appointment on January 13, 2022, as described above. The physician noted the worker’s report of right elbow pain for approximately five months due to repetitive work that flared in August 2021 after lifting and a slip and recorded the worker’s complaints of right elbow pain, pain with lifting and holding with the right hand.
On April 5, 2022, the WCB received a January 13, 2022 chart note from the treating physiotherapist which indicated the worker returned to work on January 10, 2022 after being off work from another injury and experienced pain in their right elbow, which became more painful with repetitive use. The physiotherapist outlined the worker’s report of right elbow issues for about five months which they self-treated. The physiotherapist noted painful flexion and extension of the worker’s right elbow, spasms with wrist extensions and diagnosed lateral epicondylitis. The WCB also received a follow-up report from the treating physician for a February 1, 2022 appointment, noting ongoing right elbow pain with right lateral epicondyle tenderness with normal range of motion, and that the worker remained off work due to pain.
A sports medicine physician examined the worker on March 16, 2022, noting the worker’s report of right elbow pain for a few months, that “got worse after a pulling injury in which [the worker] was falling off a stairs (sic) and held on railing and [their] elbow got pulled.” The worker described sharp pain in the lateral right elbow that increased with lifting or twisting activities. The physician noted the worker tried anti-inflammatory medications, physiotherapy and bracing without improvement, and found no swelling, redness, bruising or deformity, but noted tenderness on the lateral epicondyle, and painful resisted extension testing on both wrists at the elbow and forearm and passive flexion testing on both wrists painful at the elbow. The treating physician diagnosed lateral epicondylitis and referred the worker for an MRI to confirm the diagnosis.
On April 27, 2022, a WCB medical advisor reviewed the worker’s file, noting the worker provided a history of chronic recurrent right elbow symptoms before November 4, 2021. The medical advisor agreed with the diagnosis of right epicondylitis and found this to be a pre-existing condition. On reviewing the surveillance video from the November 4, 2021 incident, the medical advisor concluded the based on the actions viewed, there was no evidence of impact to the right elbow or loading of the right arm or wrist, nor a significant injury to the worker’s right arm that would likely have had an adverse effect on the pre-existing epicondylitis. The medical advisor concluded that as the worker could perform their job duties before November 4, 2021 without restrictions, absent evidence of an injury that affected the pre-existing right arm condition, the worker could continue to perform those duties without restrictions.
On April 28, 2022, the WCB advised the worker that it determined their current right elbow and arm difficulties were not related to a workplace accident and the claim was not acceptable.
The worker contacted the WCB on July 6, 2022 to advise they have an audio recording of a conversation with the employer discussing the November 4, 2021 incident, which the worker provided to the WCB on August 18, 2022. The WCB advised the worker on August 31, 2022, that the recording was reviewed but there was no change in the decision that the claim was not acceptable.
The worker submitted an MRI study dated August 25, 2022 and letter from their treating physiotherapist dated December 15, 2022, and again requested the WCB reconsider the decision on their claim. The worker noted the latest information indicated a diagnosis of a longitudinal partial tear of their right common extensor, which they submitted was caused by the November 4, 2021 incident. A WCB medical advisor reviewed the worker’s file and the new medical information on February 24, 2023, noting the pre-existing right elbow epicondylitis and concluding that it was unlikely that condition was materially affected by the November 4, 2021 incident. Further, the medical advisor provided it was speculative to determine when the tear indicated in the MRI study occurred, noting it was unlikely the November 4, 2021 incident caused or caused a progression of the tearing indicated on the MRI. On March 1, 2023, the WCB advised the worker that upon review of the latest information, there was no change to the decision that the claim was not acceptable.
On April 24, 2023, the worker’s representative requested Review Office reconsider the WCB’s decision. On June 26, 2023, Review Office found the worker’s claim was not acceptable.
Both Claims
The worker’s representative filed an appeal with the Appeal Commission for both claims on April 24, 2024 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. After the requested information was received and forwarded to the interested parties for comment, the appeal panel met on November 20, 2024 to render its decision on the issues 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. 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 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy") addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The Policy provides that the WCB will not provide benefits for disability resulting solely from the effects of a worker's pre-existing condition as the WCB is only responsible for personal injury resulting from accidents arising out of and in the course of employment. The Policy defines a pre-existing condition as a medical condition that existed prior to the compensable injury. “Aggravation” is defined as the temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury and “enhancement” is defined as when a compensable injury permanently and adversely affects a pre-existing condition.
Worker’s Position
The worker appeared in the hearing, represented by a worker advisor who outlined the worker’s position in an oral submission. The worker provided testimony through answering questions posed by the worker advisor and members of the appeal panel.
In relation to the accident of August 17, 2021, the worker’s position is that the claim is acceptable as the evidence indicates that the worker sustained injury to their right elbow 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 the worker’s development of right lateral epicondylitis as a result of their long days working seven days a week, with little opportunity to rest, at two jobs for the employer, in work that relied heavily on the worker’s use of both arms to load and unload items from a truck and to deliver and place those items in clients’ premises. These duties, the worker submits, caused them to develop epicondylitis in their right arm, the symptoms of which increased in August 2021. Although the worker initially self-treated their symptoms and self-modified their job duties to accommodate this injury, ultimately the symptoms increased to the point where the worker sought medical attention and needed to be removed from work.
In relation to the accident of November 4, 2021, the worker’s position is that the claim is acceptable as the evidence supports a finding that they sustained injury to their right elbow after slipping from a loading dock and grabbing hold with their right arm to avoid falling. The worker submits that as a result of this incident, they developed an instant burning pain that differed from their previous elbow symptoms and as a result they had to rely primarily on their left arm to continue working. This change in the worker’s ability to continue working at their job duties supports the worker’s position that they sustained further injury to their elbow because of this incident, as confirmed by the opinion of the treating sport medicine physician. The worker’s position is that that subsequently identified tendon tear, noted in the August 2022 MRI study, occurred when they fell and grabbed hold of a support with their right arm. The evidence, the worker submits, supports a finding that as a result of this incident they caused injury to their right elbow or in the alternative, aggravated or enhanced their pre-existing right lateral epicondylitis. In either case, the claim should therefore be accepted.
Employer’s Position
The employer did not participate in the appeal.
Analysis
There are two issues on appeal, in relation to two different accident claims made by the worker, but the question for the panel to determine is the same in each claim. The worker is appealing from the WCB’s decisions that their claims are not acceptable. For the appeal in relation to the accident of August 17, 2021 to be successful, the panel would have to find that the worker’s right elbow condition is the result of an accident arising out of and in the course of their employment. Similarly, for the worker’s appeal in relation to the accident of November 4, 2021 to succeed, the panel would have to find that the worker’s right elbow condition is caused by or aggravated or enhanced by an accident arising out of and in the course of their employment. As detailed in the reasons that follow, the panel was not able to make such findings in relation to either claim and therefore, the worker’s appeal is denied.
The panel noted that the details of and evidence in relation to these claims overlap, and therefore we considered the totality of the evidence, including information from both claim files as well as the worker’s testimony and submissions, in reviewing each appeal.
Accident of August 17, 2021
The worker claims that they developed right lateral epicondylitis in August 2021 as a cumulative injury arising out of and in the course of their employment which they state requires them to engage in repetitive and fast-paced duties, working seven days at their two jobs with the employer. Cumulative injury claims that arise out of participation in a worker’s regular, ongoing job duties are considered under clause (b)(ii) of the statutory definition of accident as an injury caused by a “thing that is done and the doing of which arises out of, and in the course of employment.”
In considering the worker’s claim, the panel noted the evidence that the worker first notified the employer of an elbow injury on January 12, 2022, advising they had “tennis elbow that has become severe” over the previous 5 months and that they required time off work as a result. The panel noted that the worker also spoke with the WCB about their right elbow condition on January 12, 2022 and made their claim on January 17, 2022. There is evidence that the employer knew the worker had right elbow difficulties and provided a helper to assist the worker in mid-November 2021, but the worker did not at that time advise the employer that they believed their difficulties were caused by their job duties. The panel also noted that after August 2021, the worker continued working at both jobs and seven days a week until early December 2021 when they sustained an unrelated upper back injury. It was only after the worker returned to those duties on January 10, 2022 and worked three days that they provided their injury report to the employer.
The panel considered that in the hearing, the worker described having a minor flareup of tennis elbow symptoms in August 2021 but confirmed they had no time loss and self-modified their job duties to rely more on their left hand and self-treated their symptoms. Although the worker testified that they sought medical attention for their right elbow in December 2021, the evidence confirms the treating family physician did not provide any treatment to the worker between September 2020 and December 8, 2021 when the worker sought treatment in relation to their back injury, and further, that the worker first sought medical attention for their right elbow at a physiotherapy assessment on January 6, 2022. The medical reporting indicates diagnosis on January 6, 2022 of right lateral epicondylitis, which was confirmed by both the treating family physician and a second physiotherapist on January 13, 2022. The panel accepts and relies upon the medical reporting as confirming this diagnosis in January 2022, with the worker reporting an increase in symptoms in August 2021.
The panel noted the WCB medical advisor’s February 3, 2022 opinion outlines that:
Epicondylitis is a very commonly occurring condition…. Often an inciting or triggering injury is not apparent….
There is evidence that some activities can contribute to the development of epicondylitis. This includes sustained performance of activities requiring repetitive and forceful wrist movements of flexion/extension or supination/pronation. A blow to the area of the epicondyle may also be associated with the onset of the condition.
The panel relies upon this evidence as to the etiology of epicondylitis and considered whether the evidence of the worker’s specific job duties supports a connection between the development of the worker’s right lateral epicondylitis and those job duties. The panel finds that the evidence indicates significant variation in the worker’s daily job duties, which involved loading and unloading trays of product, driving to numerous customer locations, and placing and removing product from shelving in customer locations. We find that those duties required at most intermittent awkward or forceful positioning of the worker’s hands and wrists and intermittent repetitive use of their hands in placing items on shelves, with relatively low force or weight requirements. The panel took note of the WCB medical advisor’s conclusion in relation to the worker’s described job duties that “The development of epicondylitis from these duties is considered unlikely, particularly in someone who has been performing the same duties for many years, and thereby would be likely to have developed the necessary strength in the relevant anatomic areas.” We further find there is no evidence of any change in the worker’s job requirements in or leading up to August 2021 that could potentially support the worker’s development epicondylitis at that time.
Further, the panel also noted there is evidence of previous symptomatic episodes before 2018, at a time when the worker stated they were not working in two jobs with the employer, although the worker confirmed they did not seek medical attention or report any injury to the employer at that time. The medical advisor concluded in their April 27, 2022 opinion that based on the history provided by the worker, their right epicondylitis was a pre-existing condition.
Based on the evidence before the panel, and on the standard of a balance of probabilities, we find that the worker’s right elbow condition did not arise out of and in the course of their employment, and as such, the claim is not acceptable.
Accident of November 4, 2021
This claim arises from an incident at work on November 4, 2021 which the worker did not report to the WCB nor the employer at that time. Nonetheless, having reviewed the video reporting of the event, the panel is satisfied that the incident did occur. The video from the customer location where the worker was unloading product, as reviewed by the panel, confirms that on November 4, 2021 at approximately 12:32 p.m. the worker, while placing a rack of items on a stack of racks in a loading dock area, stepped backwards off the loading platform and landed on their feet, upright on the warehouse floor, with their right arm extended to stabilize or hold the rack just placed and their left arm bent and grabbing hold of a dolly on the floor. This video also shows the worker climbing back onto the platform immediately afterwards, briefly stepping out of sight of the camera behind the stack of racks before stepping back into sight, returning to the floor level and using both arms overhead to adjust the top rack on the stack and then climbing back onto the dock and adjusting the stacks further, using both arms. The timer clock on the video indicates these events occurred within a period of about 10 seconds and about two minutes later, shows the worker using both arms to move several stacked racks of product with a dolly in the warehouse area. The panel relies on this evidence to confirm the incident giving rise to the worker’s claim.
The medical reporting confirms a diagnosis of right lateral epicondylitis on January 13, 2022 and that the worker had symptoms going back some five months to approximately August 2021; however, as noted in our findings above, the panel is not satisfied that this diagnosis arose out of and in the course of the worker’s employment, although there is evidence that the worker experienced right elbow symptoms while at work. As such, the panel considered this claim on the basis that the worker has a non-compensable pre-existing diagnosis of right epicondylitis.
The panel therefore considered whether the evidence supports a finding that as a result of this incident, the worker experienced an aggravation or enhancement of symptoms of their pre-existing right elbow condition or caused a new injury to their right elbow. The earliest medical report indicating the worker had a fall at work is the January 13, 2022 physiotherapy chart note, which outlines the worker’s subjective report of tennis elbow pain for about five months “off and on” and that the worker “slipped and tweaked [their] arm when grabbing a hand rail when loading the truck on a raised loading dock. Approx 2 months ago.” The panel noted that the details of the mechanism of injury in this report are not supported by the video evidence as described above. The physiotherapist also noted the only prior treatment of the worker’s right elbow was at physiotherapy one week earlier, but that the worker previously self-treated their symptoms with some exercises, a brace, ice, and a topical cream. While the worker testified that they sought treatment for their elbow in December 2021, the medical reporting does not support that assertion.
The panel also noted the WCB medical advisor’s opinion of April 27, 2022 and that the medical advisor also reviewed the video of the incident on November 4, 2021. The medical advisor concluded:
“The actions viewed do not demonstrate an impact to the right elbow or any element of loading of the right arm and specifically the right wrist extensor muscle-tendon unit or its attachment at the lateral epicondyle. Activities observed following the incident involve loading of the right arm without apparent difficulties or reluctance to use the right arm. Based on review of the videosurveillance there is no evidence of a significant injury to the right arm … which would have been likely to have adversely affected the pre-existing epicondylitis.”
The treating sport medicine physician, in their October 18, 2023 opinion (based on the fax date stamp) outlined their belief that the incident on November 4, 2021 aggravated or enhanced the worker’s pre-existing condition, based on the worker’s report that their pain was manageable before this incident but became unmanageable after it. In considering this opinion, the panel noted that the worker continued with their regular duties in both jobs after November 4, 2021 until they were removed from work in early December 2021 due to their upper back injury. While there is evidence that the employer provided a helper to the worker at some point in November 2021, suggesting that the worker was at that time unable to meet their job obligations alone, the worker did not seek medical treatment in relation to their elbow until more than two months later although they were being treated in that time for the non-compensable upper body injury, and after more than a month away from work. The panel does not find it surprising that the worker, who has a chronic right elbow condition, would experience an increase in symptoms upon returning to this work after considerable time away. Further, we note that by the time the worker first saw the sport medicine physician in March 2022 they were away from work (except for three days in January) for more than three months. On considering the medical reporting and opinions, in light of the totality of the evidence before us, the panel finds that the incident did not cause aggravation or enhancement of the worker’s pre-existing right lateral epicondylitis.
The panel also considered that the more recent medical reporting indicates a low grade intrasubstance longitudinal tear of the common extensor tendon at the worker’s right elbow. We noted the February 24, 2023 opinion of the WCB medical advisor that such a tear is a common finding in the presence of symptomatic epicondylitis and that such a finding provides diagnostic confirmation rather than indicating a new injury. The medical advisor further commented that one can only speculate when this occurred and note that the treating sport medicine physician also commented that “no one can really confirm whether this has happened before injury or as the results of injury” and that it is commonly seen on the MRI when the condition is chronic, even with no history of injury. The treating sport medicine physician also noted that the specific type of tear shown on the MRI study “decreases the probability of tear being as a result of injury.” As such the panel is satisfied that the evidence does not support the finding that the worker sustained a new injury to their right elbow as a result of this incident.
The panel also reviewed the September 14, 2023 report from the physician with an interest in occupational health who concluded that the worker was not at that time recovered from their injury which the physician related to the worker’s “highly repetitive” workplace duties and the November 4, 2021 incident at work. While we note the physician stated they had access to the worker’s WCB claim file, we also note the physician did not indicate that they viewed the video of the incident at work on November 4, 2021 and their description of the event does not reflect what the panel saw in that video, nor do they address the April 27, 2022 opinion of the WCB medical advisor based on that video. The panel therefore gives less weight to this opinion.
Based on the evidence before us and on the standard of a balance of probabilities, the panel is unable to find that the worker sustained an injury as a result of the incident of November 4, 2021. Furthermore, we are unable to find that the worker’s pre-existing right lateral epicondylitis was aggravated or enhanced as a result of the incident of November 4, 2021. Therefore, the panel is satisfied that the claim is not acceptable, and the worker’s appeal is denied.
Panel Members
K. Dyck, Presiding Officer
J. Peterson, Commissioner
R. Ripley, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 29th day of November, 2024