The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decision that their claim is not acceptable for an accident occurring on May 23, 2023. A hearing was held on April 16, 2025 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable for an accident occurring on May 23, 2023.

Decision

The claim is not acceptable for an accident occurring on May 23, 2023 but the panel finds that on May 23, 2023 the worker experienced a recurrence of the injury sustained on November 24, 2022.

Background

The worker provided a Worker Incident Report to the WCB on June 13, 2023 reporting injury to their left hand that occurred on November 24, 2022, which they reported to the employer that day. The worker described taking handwritten notes for 3.5-4 hours on November 24, 2022 and on May 23, 2023, typing for approximately 3 hours while working away from their usual workspace. The worker described first noticing symptoms after approximately 2 hours of handwriting, beginning with pain and progressing to aching in the ulnar collateral ligament region of their thumb, making it difficult to type or write quickly. The worker noted this occurred when they were performing job duties during a long meeting, and noted that on both dates, they worked overtime to complete those duties. The worker indicated initially, they self-treated the injury with ice, anti-inflammatory medications, a hand massager and self-modified their duties to use their left thumb less often. The worker explained they delayed in reporting the injury due to a previous negative experience with the WCB.

The Employer Incident Report provided to the WCB on June 13, 2023 noted the worker injured their left hand at work on November 24, 2022 and had reported experiencing hand cramps while taking notes at a meeting on that date. The employer further noted since that time, the worker was noted as doing hand stretches to help with the cramping and taking short breaks. Further, the employer suggested the worker take notes on a computer after that meeting to help prevent further issues with their hand. The employer reported the worker reported a flare-up of their left hand symptoms on May 26, 2023 after typing notes during a meeting on May 23, 2023 and the worker advised they were seeking medical treatment.

The WCB received medical chart notes from the worker’s assessment at a walk-in clinic on May 24 and 25, 2023. The chart note for May 24 indicated the worker reported a 4-month history of left thumb pain and noted the worker’s job duties involved repetitive movement from typing. The treating physician found tenderness at the left thumb metacarpophalangeal joint and noted normal power, tone, and sensation in that area, diagnosed thumb pain and recommended an x-ray. In the May 25 chart note, the physician commented that the x-ray indicated no fractures or arthritis, provided a diagnosis of “likely tendinitis” and referred the worker to a sports medicine specialist.

A sports medicine physician assessed the worker on June 8, 2023. At that time, the worker reported pain to their left thumb since the previous Christmas, when they experienced an aggravating event described as writing for an extended period of time. The worker noted the pain seemed to heal from the acute phase but never completely went away and flared up again several weeks earlier after typing for a prolonged period of time. The worker described the pain to the inner part of their thumb and noted they were left hand dominant. They described having full use of their hand but that certain movements of their thumb, including gripping a pen or other objects were uncomfortable. On examination, the sports medicine physician found discrete tenderness to the medial side of the proximal interphalangeal joint of the worker’s left thumb, located over the ulnar collateral ligament exclusively, with no laxity or discomfort noted, and diagnosed possible inflammation of the ulnar collateral ligament. The physician recommended bracing, avoid aggravating activities, continued use of non-steroidal anti-inflammatory medications and treatment by a hand specific physiotherapist.

On June 19, 2023, at physiotherapy assessment, the worker reported they were typing for 2.5 hours straight at a meeting and felt their left thumb cramp and become very achy, sore, and weak. The worker noted they did not normally type for that length of time or as quickly as they did for that meeting and also reported the pain to their thumb occurred previously in November 2022, when their thumb was very sore for weeks afterward. The worker complained of pain with thumb pinch, pressure into metacarpophalangeal joint, pain to the ulnar side of the metacarpophalangeal joint on palpitation and pressure and weak thumb extension. The physiotherapist found reduced extension, strength and pinch of the worker’s left thumb compared to the right, pain to the metacarpophalangeal joint at the ulnar collateral ligament on stress and mild to moderate edema to the metacarpophalangeal joint. The physiotherapist diagnosed left thumb ulnar collateral ligament sprain and extensor pollicis longus tendinopathy and recommended various restrictions.

At follow-up with the walk-in clinic physician on June 22, 2023, the worker reported ongoing left thumb pain, and the physician recommended they remain off work until June 30, 2023.

On June 27, 2023, the worker confirmed to the WCB that while taking handwritten notes during a long meeting on November 24, 2022, they began to feel pain in their left hand after 2 hours and by the end of the meeting, their pain increased. They stated that during the meeting, they had to get an ice pack to put on their hand so they could continue taking notes. The worker noted they did not take notes for the following 3 monthly meetings but when they took notes again on May 23, 2023, they typed instead of handwriting, but again felt the same symptoms in their left hand. The worker described feeling a pinching sensation, with tension at the bottom of their hand where their thumb was and at the bottom of their thumb when pressing the space bar on the keyboard and noted their symptoms would subside when they were not performing this job duty but would return when they were performing it again, with pain when attempting to type fast or write. The worker provided a description of their job duties and noted the requirement to take notes during a lengthy monthly meeting was a change in their duties, and that while performing this duty, they are not situated at their regular workstation. The worker further noted they had advised their coworkers of their left hand difficulties and had made ongoing complaints since the November 2022 incident. The worker advised they used the prescribed brace, went for physiotherapy and used anti-inflammatory medications, and felt they had recovered 60-70% from their injury.

On July 31, 2023, the worker’s manager provided details of the worker’s job duties to the WCB and noted they had been aware of the worker’s left hand injuries since the incident on November 24, 2022, as the worker was wearing a bandage or something similar on their hand the following week and they advised it was due to their hand cramping while taking notes on November 24, 2022. The manager indicated a hazardous occurrence report was completed at that time. The manager also noted that their coverage partner completed another hazardous occurrence report on May 23, 2023 after the worker reported a flareup with their left hand injury after taking notes at a meeting on that date, and that an ergonomic assessment of the worker’s workspace took place on June 14, 2023. The manager confirmed the meetings take place in a location other than the worker’s workspace and that no ergonomic assessment of that space was completed.

A WCB medical advisor reviewed the worker’s file on August 18, 2023 and concluded that injuries to the ulnar collateral ligament typically involve acute traumatic injuries and that the nature of the worker’s duties while repetitive, did not involve significant force. The medical advisor also noted the worker reported symptoms when performing some of their job duties in a sustained manner but could not relate those symptoms to the job duties.

On August 23, 2023, the WCB advised the worker their claim was not acceptable as a causal relationship between their job duties and their left hand difficulties could not be established.

On December 19, 2023, the worker requested Review Office reconsider the WCB’s decision to deny acceptance of their claim, supported by a written submission. The worker noted that when they had stopped taking notes at long meetings and wore the prescribed hand brace, their symptoms stopped. The worker also provided a copy of the recent ergonomic assessment of their workspace. On January 10, 2024, Review Office determined the worker’s claim for a left hand injury that occurred on November 24, 2022 was acceptable, however, their claim for an injury that occurred on May 23, 2023 was not acceptable.

On December 6, 2024, the worker’s representative appealed the decision on the question of claim acceptance of the May 23, 2023 workplace incident and a hearing took place.

Reasons

Applicable Legislation and Policy

The worker is employed by a federal government agency or department and therefore this claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Section 4(1) of the GECA provides that an employee is entitled to compensation if they sustain personal injury by an accident arising out of and in the course of their employment. An accident is defined in s 2 of the GECA to include "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause." Section 4(2)(a) of the GECA provides that a federal government employee in Manitoba receives compensation at the same rate and under the same conditions as a worker who is covered under The Workers Compensation Act (the "Act").

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

A worker is entitled to compensation under s 4(1) of the Act when it is established that they sustained personal injury as a result of an accident at work. Under s 4(2), a worker injured in an accident is entitled to wage loss benefits for their loss of earning capacity resulting from the accident, but wage loss benefits are not payable where the injury does not result in a loss of earning capacity during any period after the day of the accident. When a worker has sustained a loss of earning capacity or an impairment, or requires medical aid, compensation is payable under s 37 of the Act.

The WCB has established Policy 44.10.20.60, Recurring Effects of Injuries and Illnesses (Recurrences) (the “Recurrence Policy”) to address the circumstances where workers return to employment after a workplace accident and later experience a renewal of symptoms or increase in permanent impairment. In these cases, the WCB must determine whether the worker has experienced a recurrence of a previous workplace injury, or whether their current condition is caused by a new and separate intervening event. In making this determination, the Recurrence Policy requires that the WCB consider the following questions:

1. Was there an intervening incident, event or exposure (“intervening event”) between the previous workplace accident and the renewal of symptoms or increase in permanent impairment (the “current condition”)? 

2. If there was an intervening event, was it significant enough to be the cause of the worker’s current condition? 

3. Are there indicators that the worker’s current medical condition is consistent with the injury caused by the previous workplace accident? 

4. Are there indicators of consistency between the worker’s previous workplace accident and their current condition?

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 a written submission provided to the panel in advance of the 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 is that the worker experienced a recurrence of the injury sustained in the compensable workplace accident of November 24, 2022 while typing minutes in a meeting on May 23, 2023. The worker submits that the provisions of the Recurrence Policy apply and that based on the evidence, the WCB should accept the worker’s current complaints as being a recurrence of the compensable injury.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The worker’s appeal relates to the WCB’s decision that the claim is not acceptable in relation to an accident occurring on May 23, 2023. For the worker’s appeal to succeed, the panel would have to determine that the worker sustained an injury as a result of an accident arising out of and in the course of employment on May 23, 2023, or that the worker experienced a recurrence of the compensable injury sustained in November 2022 on May 23, 2023. The panel finds that it is more likely than not that on May 23, 2023, the worker experienced a recurrence of the compensable injury to their left hand and therefore the worker’s appeal is successful.

The panel noted the WCB Review Office accepted the worker’s claim in relation to a left hand injury that occurred at work on November 24, 2022 after an extended period of handwriting minutes of a meeting in progress that lasted for several hours, and that this finding is not under appeal. We further noted the evidence that the worker is left-hand dominant, and that the injury sustained on November 24, 2022 was to their left hand. As the worker did not seek medical attention in relation to that injury, there are no medical reports indicating the extent of that injury nor any medical evidence of a recovery from that injury. As such, the panel first considered whether the injury arising in May 2023 was a recurrence or a new injury to the worker’s left hand.

As required by the provisions of the Recurrence Policy, the panel considered firstly whether there is evidence of any intervening incident, event, or exposure from the time of the workplace accident to the time of the increase in the worker’s symptoms and impairment. In reviewing the worker’s testimony, and the information provided to the WCB by the worker and the employer in relation to the incident on May 23, 2023, the panel noted the employer described to the WCB that the worker experienced a “flareup” of their previous left hand injury. The evidence confirms the worker reported an increase in their symptoms to the employer on May 25, 2023 after typing at a computer set up on a boardroom table, rather than at an ergonomically correct desk, during a lengthy meeting for which the worker was responsible for taking minutes. We noted that the accepted mechanism of injury in relation to the November accident was an extended period of taking handwritten minutes in a work meeting. In May, the worker’s symptoms arose after an extended period of typing minutes during a meeting at work using a computer. While each incident of development of symptoms arose from a different mechanism of injury, that is, left-handed writing vs. bilateral typing, in each case the worker’s complaint arose out of the same job duties undertaken over an extended period of time. We are satisfied that the evidence supports a finding that the May incident was an intervening “incident, event or exposure” that resulted in an increase in the worker’s left hand symptoms, however this finding is not of itself determinative of the question.

The Recurrence Policy then requires that the panel consider if the intervening event was of sufficient significance to be the cause of the worker’s condition. In reviewing the evidence in relation to this question, we noted that the WCB medical advisor concluded that the nature of the reported job duties, while repetitive, “do not involve significant force” and that it is not clear that the worker’s job duties in the typing of minutes on a computer are the cause of their left hand symptoms. We also noted the worker’s testimony that when using a keyboard to type, they use both hands in traditional typewriter form. Based on the evidence, the panel is not satisfied that the event of May 23, 2023 was of sufficient significance to have caused the worker’s left hand condition.

The panel then considered, as required by the Recurrence Policy, whether there are indicators that the worker’s current medical condition is consistent with the injury caused by the previous workplace accident. As noted above, there is no medical evidence in relation to the initial injury, but the reporting in relation to the May 2023 injury indicates the worker’s report that their thumb was very sore for weeks after the November incident, and that in June 2023, the worker’s left thumb “cramped and became very achy and sore and weak.” The medical chart notes from May 24, 2023 indicate the worker reported a 4 month history of left thumb pain with “no injury”. The panel also noted the employer’s report to the WCB indicated that since the November 2022 meeting the worker had been “doing hand stretches to help mitigate cramping, as well as taking short breaks during long meetings” and that the employer had recommended the worker rather use a laptop computer for notetaking “to hopefully prevent the issue from occurring again.” In reviewing the medical evidence and opinions, the panel is satisfied that the anatomical sites currently affected are the same as those affected or suspected of being affected by the worker’s initial injury, the worker’s physical functions affected are the same as those affected by the initial injury, the degree of the worker’s functional impairment is similar over time, and the worker’s current symptomatic experience is similar to that after the accident. As such, we are satisfied that there are indicators that the worker’s current medical condition is consistent with the injury caused by the previous workplace accident.

Finally, the Recurrence Policy requires the panel to consider whether there are indicators of consistency between the worker’s previous workplace accident and their current condition. There are no medical reports to confirm ongoing symptoms between the two events, but the employer’s report indicates that the worker not only reported symptoms, but took ongoing steps to address their symptoms, such as stretching to relieve cramps and taking rest breaks. The evidence from the employer supports the worker’s testimony that the worker took steps to alleviate their symptoms as needed, used a keyboard instead of handwriting for minute-taking as suggested by the employer, and reported their difficulties to the employer as they arose. The panel is satisfied that these actions indicate consistency between the previous workplace accident and the worker’s condition following the May 23, 2023 incident.

Based on the evidence before us and on the standard of a balance of probabilities, the panel finds that in May 2023, the worker experienced a recurrence of symptoms arising out of the injury sustained as a result of the compensable accident of November 24, 2022. Based on this finding, the panel concludes that the claim is not acceptable for an accident occurring on May 23, 2023.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 1st day of May, 2025