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 teleconference hearing was held on April 10, 2025 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker submitted a Worker Incident Report to the WCB on September 3, 2024 reporting an injury to their right wrist that occurred at work. It was noted on the Report, the worker was reporting a cumulative injury and stated their symptoms started approximately a month previously and were getting progressively worse so an accident date of August 3, 2024 was provided. The worker related their wrist difficulties to the way they performed their job duties involving loading product onto pallets. The worker noted that whenever they were performing those duties and their wrist was bent downwards, they felt tension in their wrist. The worker described shooting pain that went from their wrist to their thumb that would go away at the end of the day and noted whenever they opened their hand, they felt a “stabbing stretching feeling”. They also noted difficulty writing and constant nagging pain with shooting pains. The worker further noted they spoke with their supervisor and mentioned the strain in their hands and the supervisor recommended that the worker “keep an eye on it”.

The worker sought medical treatment on August 30, 2024 reporting ‘acute on chronic wrist pain’. The treating physician noted normal range of motion of the worker’s right hand, tenderness at the base of the thumb and a negative Phalen’s test for carpal tunnel. A diagnosis was not provided. Bracing of the right wrist was recommended for four weeks and avoiding heavy lifting for six weeks was a recommended restriction.

On September 10, 2024, the employer provided the WCB with an Employer’s Accident Report. The Report indicated the worker injured their right wrist on August 3, 2024 after lifting items onto a pallet with their wrist up and felt a pull of a muscle in their right wrist, which the worker described went from their thumb down to halfway past their wrist on their forearm. Since that time, the worker has reported ongoing and increasing pain. In the ‘Notes’ section of the Report, the employer noted the worker reported their wrist injury during an assessment for another WCB injury due to increasing pain. The worker reported that the repetitive action of stacking cases (boxes or baskets) caused their injury, and further noted that the worker had not shown any performance changes due to the effects of the injury.

The worker attended an initial physiotherapy assessment on September 11, 2024 reporting that after repetitive moving of items from a low pallet to a high shelf, moving their wrist from radial deviation to ulnar deviation, they experienced sudden pain over their radial wrist/thumb area, which had progressively worsened. The treating physiotherapist noted the worker had pain in the radial wrist/thumb with writing, lift/carry and pushing/pulling actions. A positive Finklestein’s test was noted, indicating a diagnosis of De Quervain’s tenosynovitis of the right wrist. It was noted by the physiotherapist the worker’s treating physician wanted them off work for four weeks and to be reassessed for work capabilities before that time.

The employer provided the WCB with a copy of the worker’s job duties on September 17, 2024. On the same date, the WCB spoke with the employer who advised they had spoken with the worker’s supervisor who noted the worker had not made any complaints regarding their right wrist prior to the employer being advised of the worker’s claim by the WCB on September 3, 2024. The supervisor indicated the worker’s productivity had not changed and the worker had not shown signs of having difficulties. The WCB also spoke with the worker on September 17, 2024 who noted they did not recall the exact date their difficulties started but noted approximately the beginning of August, they first noted their symptoms and self-treated with rest, ice and heat. As well, the worker noted they only advised their supervisor in passing and did not make a formal incident report or mention their difficulties to coworkers. The worker also confirmed they started working for the employer in March 2024 and performed the same duties since that date. They also noted they use both hands to lift the items onto the pallets and they are not experiencing difficulties with their left hand.

The worker’s file was reviewed by a WCB physiotherapy consultant on September 19, 2024. The consultant provided the worker’s current diagnosis related to their right wrist was generalized right wrist and thumb pain due to repetitive gripping and lifting. The consultant further provided the medical evidence indicated the worker had full range of motion of their wrist and thumb, which supported there was not a specific clinical diagnosis as it would be expected the worker would have had some restricted range of motion and weakness on muscle testing if they had sustained an injury. The WCB physiotherapy consultant indicated there was no evidence to support the worker was totally disabled or that the worker had a pre-existing condition of their right wrist or thumb. On September 20, 2024, the WCB advised the worker that their claim was not acceptable as it could not be established that their right wrist difficulties occurred as the result of an accident at work or was caused by an incident related to their employment on August 3, 2024.

On September 30, 2024, the worker requested reconsideration of the WCB’s decision to Review Office. In their submission, the worker presented the argument that their right wrist difficulties resulted from the repetitive nature of their job duties and their treating physiotherapist supported their injury occurred from work. On October 21, 2024, Review Office upheld the WCB’s decision the worker’s claim was not acceptable. The Review Office accepted and agreed with the opinion of the WCB physiotherapy consultant and found it was unable to establish a connection between the worker’s right wrist difficulties and their job duties.

The worker filed an appeal with the Appeal Commission on November 13, 2024 and a hearing was arranged.

Reasons

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

The definition of an accident set out in section 1(1) of the Act, and is defined as:

"(a) a chance event occasioned by a physical or natural cause, 

(b) a wilful and intentional act that is not the act of the worker, or 

(c) 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, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event"

When it is established that a worker has been injured as a result of an accident as defined by the Act, the worker is entitled to benefits under section 4(1) of the Act.

The Act further states that a presumption exists where a claim for an accident is made. Section 4(5) of the Act states:

Presumptions — accident arising out of employment 

4(5) Where the accident arises out of the employment, unless the contrary is proven, it shall be presumed that it occurred in the course of the employment; and, where the accident occurs in the course of the employment, unless the contrary is proven, it shall be presumed that it arose out of the employment.

The WCB's Board of Directors established Policy 44.05. titled ‘Benefits Administration - Adjudication and Compensation - Arising Out of and in the Course of Employment’ (“Policy"). The Policy provides the following guidance in determining whether an injury arose in the course of employment:

“A worker's accident arises out of their employment when employment related activities or exposures cause the accident. The WCB interprets the concept of "employment related activity" broadly, to include activities that are both directly and incidentally related to the worker's employment. In other words, the activity causing the worker's injury need not be directly related to a specific job task. If the activity is reasonably incidental to the obligations and expectations of the employment, then the WCB will consider it to be an employment related activity.

In determining whether a worker's accident arose out of their employment, the WCB must employ the appropriate standard of causation.

…

Where the evidence establishes that the worker's accident not only arose out of their employment (i.e. that work activities or exposures caused the accident), but also that it arose in the course of employment (i.e. that the accident occurred at or during work), the legal test of "arising out of and in the course of employment" is met. The accident is related to their employment in both ways.” [emphasis added]

Worker’s Position

The worker was self represented. They provided testimony and answered questions posed by the appeal panel.

The worker’s position is that the evidence supports their claim that they sustained an injury to their right wrist arising out of and in the course of undertaking their job duties. The worker explained that their job duties required repeatedly loading metal trays containing eggs from a low pallet to a high shelf, and sorting out egg trays from pre-packed pallets.

The worker advised that they were now diagnosed with De Quervain's tenosynovitis, and that they were currently receiving cortisone shots on their wrist at the Pan Am Clinic.

The worker also clarified that they were initially placed on modified or light duties (partially due to an unrelated claim) which involved their ordinary duties but at a slower pace. These modified duties also included intermittent cleaning, floor sweeping, and having the worker operate a floor scrubbing machine.

Ultimately, the worker’s position is that the claim is acceptable as the evidence supports the finding that their right wrist injury was directly caused by their job duties.

Employer’s Position

The employer did not participate.

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 worker’s claim to the WCB is based upon injuries to their right wrist that they believe arose out of and in the course of their employment. As set out in the Policy, an injury arises out of employment “if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment” and occurs in the course of employment if it “occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.”

The worker’s position is that they initially developed a strain on their wrist out of the repetitive job duties.

The worker’s evidence is that they commenced their employment in March 2024, and by early August 2024, they began experiencing some symptoms that they at first attributed to aches and pains that typically came with the job, and soon disappears. Specifically, the worker’s reported symptoms were:

“The shooting pain that goes from my wrist to my thumb and the meaty part of my thumb would go away at the end of the day but now whenever I open my hand it's like a stabbing stretching feeling”

However, these symptoms did not disappear and in fact, worsened over time.

While the worker did not seek medical treatment until August 30, 2024, the medical reporting on file dated November 21, 2024 confirm that the worker suffers from Classic de Quervain's tenosynovitis, and that the worker suffered from “Initial strain injury … has repetitive stresses at work doing receiving and stocking.” Furthermore the worker’s treating physician states “[the worker’s] workplace repetitive stresses have the possibility of being causative here”

The evidence as to the worker’s job duties, described by the worker in some detail, outlines their daily tasks which involves the following:

• Loading and unloading pallets (four feet by four feet), which involves lifting these pallets over their head; 

• Tearing apart pre-stacked pallets and sorting the number of pieces needed from each section to create an order; 

• Lifting and loading crates and cartons of eggs repetitively; 

• Their tasks involved ‘a lot of bending, twisting, crouching, and proper lifting etiquette’.

These tasks were done by the worker 8 hours a day, and five days a week.

Based on the evidence heard and reviewed, the panel finds that the worker’s job duties are physically demanding and that the type of the work is such that the worker underwent repetitive grasping and or use of their wrists.

The panel notes that there is no evidence that the worker’s injuries did not arise out of their employment. As such, the presumption found under section 4(5) of the Act has not been refuted.

Therefore, the panel finds, on a balance of probabilities, that the worker’s job duties caused or contributed to an injury to their right wrist.

The panel noted that although the WCB found the worker delayed in reporting injury, there is evidence that the employer was aware, as early as some time in August 2024 that the worker was experiencing symptoms while at work and even advised the worker to “keep an eye on it”.

The worker delayed in seeking medical treatment for this injury as the worker believed that the pain was a normal occurrence as part of their new job, and initially, the pains that they experienced would go away at the end of the day.

We find the worker’s explanation credible in relation to why they delayed in making a formal report and seeking medical attention. It was not unreasonable, although with hindsight it may have been imprudent, to continue in the new role and try to adapt to the physical demands of that role before seeking treatment.

The panel is satisfied that the evidence supports a finding that the worker’s symptoms related to their right wrist arose in the course of their undertaking their job duties in a physically demanding job which required repetitive physical movements of their right wrist.

On the basis of the evidence before the panel, we are satisfied that the worker was injured arising out of and in the course of their work as outlined above. As such, we find that the worker was injured as a result of an accident and therefore the claim is acceptable.

The worker’s appeal is granted.

Panel Members

R. Mamucud, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Mamucud - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of June, 2025