The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that claims for workplace incidents between 2017 and 2021 were not acceptable.

A hearing was held on February 27, 2024 to consider the worker's appeal of these decisions.

Issue

Date of Accident - February 2, 2017: Whether or not the claim is acceptable.

Date of Accident - January 5, 2018: Whether or not the claim is acceptable.

Date of Accident - May 8, 2019: Whether or not the claim is acceptable.

Date of Accident - March 23, 2021: Whether or not the claim is acceptable.

Decision

Date of Accident - February 2, 2017: The claim is acceptable.

Date of Accident - January 5, 2018: The claim is acceptable.

Date of Accident - May 8, 2019: The claim is not acceptable.

Date of Accident - March 23, 2021: The claim is not acceptable.

Background

Date of Accident - February 2, 2017

On February 7, 2017, the worker filed a Worker Incident Report with the WCB reporting injury to their right groin as the result of an incident at work on February 2, 2017. The worker described:

I was just getting in and out of the big…truck. I have to climb in and out and it's high up. Has a couple of steps to get up & down. Repetitively throughout the day. Symptoms-sharp pains, some tearing feeling of a slight tear. It was later in the afternoon so I thought I would just rest & see if it gets better. It didn't get any better.

The worker reported they worked the next day and let their coworkers know they were in pain, with the coworkers advising the worker to take it easy. The worker advised they had difficulty in “getting in and out of the truck." The worker reported they sought medical treatment on February 6, 2017 and were advised to remain off work for one week and to attend physiotherapy. The worker then reported the injury to the employer.

In the Doctor's First Report for the worker's February 6, 2017 assessment, the treating physician recorded the worker’s report of pain in their right groin and noted the worker’s antalgic gait and tenderness in the right groin area. The physician diagnosed right groin strain, prescribed physiotherapy, and recommended the worker be off work for one week, and then return to sedentary duties.

On February 10, 2017, a physiotherapist assessed the worker and recorded their complaints of right anterior hip/groin pain and pain when coughing, sneezing, laughing, lifting, and going up stairs. The physiotherapist diagnosed right adductor/inguinal ligament sprain, queried a hernia and provided restrictions of no lifting, no climbing ladders/stairs, and no walking greater than 30 minutes at a time.

When the WCB spoke with the worker on February 16, 2017, the worker advised they got in and out of the truck "about 5 times" on February 2, 2017, and on one of those times, they specifically recalled feeling pain. The worker advised that getting into and out of the truck is part of their regular duties, which had not increased or changed. The worker described symptoms after February 2, 2017 of sharp pains in their groin area with a burning sensation and advised that their treating healthcare providers referred them for testing to determine if they had a hernia, and that their physiotherapist was treating for an inguinal strain. The worker also provided names and contact information for their co-workers on February 3, 2017. The WCB spoke with one of the co-workers on February 16, 2017, who advised the WCB they were not aware the worker was experiencing difficulties with a recent groin injury but confirmed they knew the worker had been in an accident the previous year and noted the worker had some general difficulties.

On February 22, 2017, the WCB advised the worker that it determined their right groin injury was not the result of a hazard of their employment and as such, their claim was not acceptable.

On June 21, 2017, the worker's representative requested Review Office reconsider the WCB's decision and on the same date, Review Office returned the worker's file to the WCB's Compensation Services, requesting they contact the other co-worker noted as working with the worker at the time of the workplace accident. On June 30, 2017, the WCB spoke with the co-worker who advised they did not witness a specific incident or injury but noted the worker complained of pain on one side of their leg, which the worker related to an ongoing difficulty, with no work-related cause described. On the same date, the WCB advised the worker there would be no change to the February 22, 2017 decision that the claim was not acceptable.

The worker's representative requested reconsideration of the WCB's decision to Review Office on June 15, 2020. The representative referred Review Office to the submission provided on June 21, 2017 and noted the worker confirmed that their injury occurred as they were getting into the work truck, and they felt that movement was forceful enough to cause the injury to their groin. The employer provided a submission in support of the WCB's position on July 24, 2020, and the worker's representative submitted a response on August 24, 2020.

Review Office found on August 25, 2020 that the worker's claim was not acceptable. Review Office determined the worker delayed in reporting the workplace accident to their employer and found inconsistencies in the worker's reporting of the mechanism of injury and symptoms experienced from the injury. Review Office also noted the co-workers did not recall a specific injury or accident sustained by the worker. For these reasons, Review Office found the worker did not sustain an accident and the claim was not acceptable.

Date of Accident - January 5, 2018

The WCB received an Employer's Report on January 9, 2018 reporting the worker injured their left hand in an incident at work on January 5, 2018, described as "The employee was clearing snow with a shovel and a broom. While gripping the shovel with [their] left hand, [they] felt severe spasm pain as if [their] palms were being crushed." In the Worker Incident Report provided to the WCB on January 10, 2018, the worker described:

I have a trigger finger prior to this. 

Didn't get any treatment for it. 

I was sweeping using broom and shovel around the brand new slide. 

I irritated my finger, started getting spasms on the middle finger all the way to the palm. 

Middle finger locked up and couldn't move and use it. 

I was sweeping the whole morning…

When the worker sought medical treatment on January 5, 2018, the previous diagnosis of trigger finger was noted, and the worker reported shoveling snow, then getting a cramp in their left hand and pain in their third digit, with numbness to the tip of their third digit, soreness and pressure to the palm of their hand also reported. The treating sports medicine physician examined the worker and diagnosed "acute exacerbation flexor tenosynovitis". The physician recommended treatment with physiotherapy and bracing and provided a recommendation of light duties with restrictions on gripping, lifting or repetitive movement with the left hand for four weeks.

When the worker attended for physiotherapy assessment on January 11, 2018, they reported triggering of their middle finger, and the physiotherapist noted tenderness and limited range of motion. The physiotherapist diagnosed D3 flexor tenosynovitis and recommended no gripping with the left hand. The employer advised they could not accommodate the worker with those restrictions.

A WCB medical advisor reviewed the worker's file on January 12, 2018 and concluded the reported mechanism of injury would not be consistent with sufficient force to cause a "…significant tissue disruption to the hand." The medical advisor noted that if the mechanism of injury did cause injury to the worker's left hand/third finger, it would have been a minor soft tissue injury in the form of a strain, from which the worker would have recovered in a couple of hours to a couple of days. The medical advisor further noted the injury occurred in the background of a pre-existing left third trigger finger and that the worker's difficulties were not related to the workplace accident.

When the WCB spoke with the worker on January 11, 2018, the worker advised they were sweeping with a broom for almost two hours on the morning of January 5, 2018 which irritated their hand, which had been sore the previous week due to handling heavy items and using an ax at work. The WCB also spoke with the worker's supervisor on the same date who confirmed the worker was sweeping that morning but had not been sweeping for a couple of hours.

On January 12, 2018, the WCB advised the worker the claim was not acceptable. The WCB determined that while the worker's duties on January 5, 2018 involved sweeping and shoveling, those duties did not occur in a forceful and repetitive manner. As such, a relationship between the job duties and the worker’s left hand difficulties were not established.

On July 3, 2020, the worker's representative requested Review Office reconsider the WCB's decision to deny the worker's claim, outlining in their submission that the worker reported difficulties with the third finger on their left hand the week before the workplace accident, which led to the worker’s experience of spasms in that finger to their palm on January 5, 2018, and that this indicated both a cumulative injury and a specific accident on that date. The employer provided a submission in support of the WCB's decision on August 20, 2020, and the worker provided a response on September 3, 2020. On September 8, 2020, Review Office determined the worker's claim was not acceptable. Review Office relied upon the WCB medical advisor’s opinion that the worker's job duties on January 5, 2018 did not structurally alter the worker's pre-existing flexor tenosynovitis/trigger finger condition and as such, the worker did not sustain an accident.

Date of Accident - May 8, 2019

The WCB received an Employer's Incident Report on May 15, 2019, reporting the worker injured their finger and hand in an incident at work on May 8, 2019. The employer described that the worker’s hands felt numb, and fingers locked up as they were picking up garbage with a picker, and that the worker claimed more locking in the right hand.

The worker attended a sports medicine clinic on May 8, 2019 reporting "increasing pain to both hands for the past few weeks - has been using handheld paper picker to pick up street garbage in the past few weeks - repetitive" and that the pain in their right hand was worse than the left, with swelling noticed in their right third finger. The treating sports medicine physician noted the worker had previously diagnosed trigger finger in their left hand and found a negative Tinels' test and no atrophy, weakness, or obvious triggering of the worker's right third finger. The physician provided a diagnosis of right hand tenosynovitis in the third digit and queried carpal tunnel syndrome symptoms. The physician treated the worker with a pain medicine injection and recommended bracing and modified duties with no repetitive grasping and no use of vibratory tools.

On May 13, 2019, the worker attended an initial physiotherapy assessment, complaining of bilateral right greater than left, third digit finger pain and locking, and pain with gripping and lifting. The physiotherapist diagnosed bilateral right greater than left trigger finger and recommended workplace restrictions of no repetitive gripping and lifting with hands.

The employer contacted the WCB on May 15, 2019 to express concerns about the claim. The employer indicated the worker performed the duties with the paper picker for only a short duration and even if they been performed over a longer period, those duties did not involve the frequency of repetition and force needed for the diagnosis provided. As well, the employer questioned that the worker claimed injury to both hands when they would have only used the paper picker in one hand.

When the WCB contacted the worker on May 17, 2019, it noted that the worker’s previous WCB claim for left middle trigger finger was denied by the Appeal Commission as it had been determined their job duties did not cause or contribute to the development of the diagnosis. The worker advised they first noted pain in both hands around mid-April 2019, that no specific incident occurred and there were no significant changes to their job duties or workload at the time. The worker stated they self-treated the injury with ice, heat, and over the counter pain medications but when their symptoms increased, they sought medical treatment and reported the injury to their employer.

The employer provided the worker's job description to the WCB on May 28, 2019 and on the same date, the WCB advised the worker their claim was not acceptable as it could not establish that they sustained an injury from an accident arising out of or in the course of their employment.

On June 7, 2019, the worker requested Review Office reconsider the WCB's decision. Review Office returned the worker's file to the WCB's Compensation Services for further investigation on June 11, 2019. On June 18, 2019, the WCB contacted the employer and requested information on the specific job duties the worker performed from April 1, 2019 to May 8, 2019. On August 16, 2019, the employer responded to the request for information and noted that while records of the worker's specific duties for that period were not kept, the available records did note the worker’s assignment to spring clean-up duties, which included log splitting and paper picking. The employer also noted the worker attended a training session for 3.5 hours the morning of May 5, 2019 and reported their injury shortly after arriving at the jobsite.

On September 6, 2019, the WCB advised the worker that a further investigation was conducted, and a causal relationship was not established between the mechanism of injury reported on May 5, 2019 and their diagnosis of bilateral tenosynovitis and bilateral trigger finger.

On June 10, 2020, the worker's representative contacted Review Office and asked that the worker's June 7, 2019 Request for Review form be resubmitted for review. In that document, the worker described their job duties and that those duties were repetitive, and further, they were not aware of any non-work activities that could have caused or contributed to their development of bilateral trigger finger. On July 24, 2020, the employer provided a submission in support of the WCB's decision.

On August 25, 2020, Review Office determined the worker's claim was not acceptable as the worker's job duties were not consistent with the risk factors associated with the development of trigger finger, in that they were not highly repetitive and did not involve forceful grasping. For this reason, Review Office could not establish a relationship between the worker's employment and their diagnosis.

Date of Accident - March 23, 2021

The employer provided an Employer's Incident Report to the WCB on April 7, 2021 indicating the worker reported injuring their ankle, back, groin and hip in an incident at work on March 23, 2021. The employer described "Re occurring hip/groin pain. [The worker] was working, walking, picking paper / splitting wood all afternoon. This has led to sore ankles, hip, groin and lower back pain."

The worker saw a sports medicine physician on March 31, 2021, reporting "…increasing and worsening right hip pain, bilaterally ankle/foot pain. Denies any trauma or injury but states has noticing (sic) increasing pain to joints from work. Has gained weight over the last couple months which he believes could be associated with the joint pain…". The worker also noted intermittent swelling to their feet and ankles and soreness in both legs at the end of their workday. The treating sports medicine physician indicated the worker's hip and groin issues were well known and that the worker did not report a new acute trauma to account for same. The physician noted the worker reported "working lots of late" and they were "on feet more now". The physician recorded mild impingement in the worker's stance, mild hip and groin pain, trunk pain to lumbar spine, radiating into the worker's hip and groin, acute lower back pain, which radiated to the groin and lateral impingement of the worker's ankles. The physician provided a prescription for insoles for the worker's shoes and physiotherapy and recommended rest. In a Work Abilities form, the physician indicated the worker's restrictions of no bending, no stooping, no crouching, no climbing ladders, no climbing stairs, and no crawling, and lifting/pushing/pulling no greater than ten kilograms, and that the worker was off work from March 24 - March 26, 2021 and March 31, 2021.

In discussion with the WCB on April 15, 2021, the worker advised they twisted their ankle and back on March 23, 2021 but continued to work until the end of their shift and did not report the incident to their supervisor or any coworkers. The worker noted they had been performing the job duties for approximately a year and previously complained to the employer about some of the wood pieces being too big and heavy. The worker advised their job duties involved a lot of repetitive bending and twisting and they had a pre-existing hip and groin injury. The worker stated they called in sick to their employer on March 24, 2021 as they were going to seek medical attention and saw their treating family physician, who did not do a physical examination but recommended the worker remain off work that day. The worker further advised that due to issues with their current family physician, they were seeking a new physician. The worker stated they continued to call in sick to the employer until April 1, 2021 when they attended work to complete an incident report.

On April 9, 2021, the worker attended a physiotherapy assessment reporting low back pain and twisting their ankle while splitting wood and tree stumps at work. The worker also reported feeling a pinch in their low back after bending over to pick up a heavy log. The worker described having pain in their low back with activity, needing to change position frequently, walking slower than usual, being able to walk only short distances and being unable to bend down due to pain. The worker also reported numbness in their right posterior hip radiating to the anterior hip. On examining the worker, the physiotherapist noted a mild antalgic gait, pain on lumbar spine flexion, limited range of motion, and pain with any repetitive bending and provided a diagnosis of sub-acute low back sprain/strain, with a recommendation for restrictions of no lifting greater than twenty pounds, and no repetitive lifting and bending.

After a follow-up appointment on April 20, 2021, the treating sports medicine physician recommended restrictions on lifting, pushing, and pulling no more than twenty kilograms, no repetitive bending and no more than 50% time on their feet.

The employer contacted the WCB on April 21, 2021 to note concerns with the worker's claim and to provide the WCB with a copy of their internal Notice of Incident, completed by the worker and signed by their direct supervisor. In that notice, the worker indicated they had sore ankles, lower back, reoccurring hip/groin pain and noted there were no witnesses to the incident as the worker was working alone. The employer noted their concern that the worker did not indicate a specific incident that caused their injury.

A WCB medical advisor reviewed the worker’s file on April 27, 2021, and provided an opinion that the worker’s current diagnoses related to their chronic pre-existing conditions. The medical advisor noted the treating sports medicine physician recommended physiotherapy to assist the worker to deal with their chronic issues.

On April 28, 2021, the WCB advised the worker their claim was not acceptable as the evidence on file did not support a finding that they sustained an accident while at work. At the request of the worker, the WCB requested chart notes from their treating family physician for their appointment on March 24, 2021 which were received on July 19, 2021. The March 24, 2021 chart note indicated the physician discussed the worker’s acute/chronic health issues and detailed the worker’s appointments and treatments since June 2020. The physician noted the worker had expressed concerns about the physician’s recommendations and treatment of the worker and was requested to find another healthcare provider. The physician recorded the worker’s report of missing time from work due to chronic joint pain after working on their feet for long periods and that the worker requested the physician complete a note for a few days off work to rest, with the physician advising they did not support completing such a note based on the worker’s presentation and would only provide a note for March 24, 2021.

On July 21, 2021, the WCB advised the worker the additional medical information was reviewed and there was no change to the earlier decision their claim was not acceptable.

On December 7, 2021, the worker requested Review Office reconsider the WCB’s decision, outlining in their submission that the injury occurred on March 23, 2021 and their treating sports medicine physician supported that the injury occurred, and the worker required treatment and time off work as a result. On January 12, 2022, the employer provided a submission in support of the WCB’s decision.

On February 1, 2022, Review Office determined the worker’s claim was not acceptable, as the initial medical information did not indicate the worker had an acute or traumatic injury related to their employment and did not support the worker’s complaints of disability were related to their job duties. Further, Review Office found the treating healthcare providers associated the worker’s weight gain to their report of joint pain, which was supported by the WCB medical advisor’s April 27, 2021 opinion.

All claims

The worker's representative filed appeals with the Appeal Commission for these four claims and a hearing was arranged for February 27, 2024.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the “Act”) regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the legislation and policy in force on the dates of the accidents are applicable.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. The Act sets out the definition of an accident in s 1(1) as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes 

(a) a wilful and intentional act that is 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….

The WCB has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The Policy sets out, in part, that the WCB “…will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the 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. The Policy outlines that when a loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury, but that when a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and 

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and 

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

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 and the employer’s representative in advance of the hearing, as well as the written submissions in support of the worker’s appeals to Review Office in respect of these claims. The worker provided testimony through answers to questions posed by the members of the appeal panel. The worker’s position with respect to each of the claims and questions on appeal is outlined below.

Accident of February 2, 2017 

The worker's position is that they sustained a groin strain injury as a result of climbing up into their work vehicle multiple times during their day on February 2, 2017. On one of those instances, the worker felt a sharp pain in their groin area, which they reported to the employer on February 6, 2017 after seeking medical care and reported to the WCB on February 7, 2017. As the worker’s groin strain injury was sustained while the worker was in the course of their employment and arose out of the worker performing their job duties, the claim should be accepted.

The worker advisor submitted that the worker sought medical attention and reported the injury on a timely basis, noting that the worker worked the next day and then self-treated the injury over the course of the weekend, before seeing a doctor on the Monday afterwards and reporting to the employer the same day.

The worker advisor submitted that the worker’s report of feeling a pain in their right groin on climbing the steps into the work vehicle is consistently described in the claim file. The worker advisor noted the steps are high relative to the worker’s height and that the height of the steps, together with the worker’s body weight, made the climb challenging for the worker and caused an injury on one of those climbs during the workday on February 2, 2017.

Furthermore, the medical reporting confirms that the worker had a right groin strain injury on February 6, 2017 and appropriately sought treatment for that injury on that date and subsequently, reporting that the injury occurred at work as described to the WCB and to the panel.

In reviewing the claim file evidence, the worker advisor noted that the WCB failed to contact the coworker with whom the worker was working on the date of injury. Further, when the WCB sought information from the coworkers on February 3, 2017, one of the coworkers confirmed they noted the worker having various physical difficulties on February 3, 2017. The worker advisor also noted that neither of the coworkers with whom the WCB spoke could confirm if the worker injured themselves on February 2, 2017 as they were not present that day. As such, there is no eyewitness evidence to contradict the worker’s evidence in relation to how the injury occurred.

In response to questions posed by the members of the appeal panel, the worker testified to their belief that they were working regular job duties on February 2, 2017 and described those duties, noting they were working with their supervisor that day. The worker described working with the other two coworkers doing a different task. The worker confirmed that they experienced a new injury on February 2, 2017, but that they also believed they were not at that time fully recovered from their prior injury. The worker testified that until February 2, 2017, they were able to manage their work, but on that day, there was a specific moment, when going up the vehicle steps, that they felt a pain in their right groin region.

In sum, the worker’s position is that the evidence confirms they sustained an injury to their right groin area while at work and in the course of work on February 2, 2017, and therefore the claim should be accepted.

Accident of January 5, 2018 

The worker's position is that they sustained an injury to their left third finger at work and in the course of work on January 5, 2018, which they reported and sought medical attention for the same day. As such, the claim should be accepted.

The worker advisor noted that while the WCB relied on some aspects of the WCB medical advisor’s opinion of January 12, 2018, they failed to consider the medical advisor’s statement that the described mechanism of injury could have caused a minor soft tissue injury and further, that the worker’s injury occurred in the background of a non-compensable pre-existing left 3rd trigger finger condition. The worker advisor pointed the panel to consider the December 27, 2017 medical reporting in relation to the worker’s left third finger condition, as indicating the worker’s pre-accident baseline and noted that the treating sports medicine physician described the worker’s January 5, 2018 injury as an “acute exacerbation” of their pre-existing condition. The worker advisor submitted that the term “exacerbation”, as used by the physician, is synonymous with the term “aggravation” as used in the Pre-Existing Injury Policy, being a “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.” As such, while there may not be evidence that the worker’s job duties or mechanism of injury resulted in any structural alteration of the worker's pre-existing condition, as the WCB medical advisor concluded, there was evidence of a temporary aggravation of that condition and therefore the claim ought to have been accepted.

The worker advisor argued that the worker’s job duties on January 5, 2018 and in the preceding week, as described by the worker in their report to the WCB, caused this aggravation of the worker’s pre-existing left third trigger finger. Because the worker had a pre-existing left third finger condition, they were more vulnerable to further injury in that finger.

In the worker’s testimony offered in response to questions from the panel members, the worker stated they could not recall if they were using a motorized broom or a hand broom.

In sum, the worker’s position is that the evidence confirms they sustained an injury arising out of and in the course of their employment and therefore the claim should be accepted.

Accident of May 8, 2019

The worker's position is that they sustained injury to both hands in April 2019 through to May 8, 2019, arising out of the completion of their various job duties which required repetitive gripping with both hands. As such the claim should be accepted based on a cumulative injury caused by the worker’s completion of their job duties over that period.

The worker advisor relied upon the description of job duties provided by the worker to Review Office on June 7, 2019, which outline that the worker’s duties in “the spring of 2019 involved lot (sic) of repetitive gripping with my hands. These activities include handling tree logs for the splitter, mopping & sweeping, emptying buckets of water, and finally picking up [paper] & garbage with the garbage picker.” The worker advisor submitted the panel should place greater weight on the worker’s description of their job duties in this time than to the information provided by the employer because the employer’s information was not provided by anyone with first-hand knowledge of the duties the worker undertook. The worker advisor further noted their view that the WCB’s investigation of the worker’s job duties was insufficient and as such any deficiencies in the evidence are the fault of the WCB.

In response to questions posed by the members of the appeal panel, the worker testified that they were engaged in regular job duties in April and early May 2019, which included picking up garbage and undertaking various cleanup tasks. The worker described how they used the garbage picker, holding the tool in their right hand and the trash bag with their left hand. The worker stated they did not usually do this task through their whole 8-hour shift, but did so for shorter periods, in segments through the course of a shift. The worker confirmed that the garbage picker tool is lightweight (less than a canned drink) and gripped much like a caulking gun. The worker further confirmed that when they sought medical treatment on May 8, 2019, the treating physician assessed and treated only their right hand.

In sum, the worker’s position is that the available evidence supports their claim of sustaining a cumulative injury to their hands as a result of undertaking various job duties in the spring of 2019, as reported on May 8, 2019 and therefore the claim should be accepted.

Accident of March 23, 2021 

The worker's position is that they sustained injuries to their lower back and left ankle arising from an ankle twist and the various job duties conducted on March 23, 2021 and therefore the claim should be accepted.

The worker explained that they did not at first report their injuries to the employer as they were “already dealing with many WCB claims and appeals already at that time so I was worried about the effect of filling out a green card. I didn’t want to disturb my employer or WCB by suddenly complaining of a back injury.” The worker further explained their belief that they could treat their pain with an over the counter medication that previously worked for them, and that they sought medical attention in the meantime and obtained a medical note for March 24, 2021. The worker noted they continued to treat their symptoms with pain relief medication, use of a heating pad and stretches, and on April 1, 2021 saw another physician who had previously treated them in relation to prior hip and groin injuries. That physician recommended time off work and physiotherapy and based on their recommendations, the worker reported the injury to their employer, and later to the WCB.

The worker’s position is that when they became aware that the injuries would not heal on their own, with time off and rest, they reported the incidents as required and therefore the claim should be accepted.

Employer’s Position

The employer was represented in the hearing by its Workers Compensation Coordinator who made oral submissions on behalf of the employer and provided information in response to questions posed by the members of the appeal panel. The employer’s position with respect to each of the questions on appeal is outlined below.

Accident of February 2, 2017 

The employer's position is that the WCB correctly determined that the evidence did not support a finding that the worker sustained their right groin injury at work on February 2, 2017 and therefore the claim should not be accepted.

The employer’s representative noted there is some evidence that the worker continued to experience right groin difficulties prior to February 2, 2017, arising from another injury in 2016, noting that the worker advised the WCB on February 16, 2017 that they believed this injury was a worsening of their prior condition.

The employer’s representative noted that the worker did not report an injury on February 2, 2017 and returned to work the following day without making a report. Furthermore, the evidence of the coworkers on February 3, 2017 does not support the worker’s report of having told their coworkers about their injury the previous day. The representative urged the panel to give weight to the evidence from the witnesses, noting the worker suggested the WCB contact them. The employer’s representative submitted that as the worker attributed their right groin pain both to getting in and out of the work vehicle, and to their prior injury, the worker’s evidence is not reliable.

In sum, the employer’s position is that the evidence does not support a finding that the worker sustained an injury arising from a workplace accident on February 2, 2017.

Accident of January 5, 2018 

The employer's position is that the worker’s claim should not be accepted because the evidence does not support a finding that the worker’s left third finger condition is the result of or caused by their job duties.

The employer’s representative noted the decision of the Appeal Commission in relation to the worker’s May 19, 2017 accident claim that the worker’s left third trigger finger condition was not caused by or related to the worker’s job duties. The representative also noted that the worker’s October 19, 2017 accident claim is relevant, in that it also related to a report of a workplace injury to the worker’s left third finger and hand and was not accepted by the WCB as being related to the worker’s job duties. The employer’s representative submitted that this claim is like those claims in that the evidence does not support a finding that the worker’s job duties caused or contributed to the development of the worker’s left third finger condition.

The employer’s representative noted the information provided by the employer to the WCB indicated that the worker was shoveling and sweeping at work for about two hours on January 5, 2017, and submitted that this was not sufficient effort to have aggravated the worker’s pre-existing condition. The representative submitted that this position is supported by the opinion of the WCB medical advisor that the described mechanism of injury would not have caused significant tissue disruption. The representative further relied upon the medical advisor’s conclusion that the worker’s left third finger condition is not a consequence of their work duties and is not an enhancement or aggravation of the worker’s pre-existing condition.

Accident of May 8, 2019 

The employer's position is that the evidence does not support the worker’s claim of a bilateral hand injury arising from the completion of their job duties in April and May of 2019 and as such the worker’s claim should not be accepted.

The employer’s representative noted that the worker did not submit a claim to the WCB in respect of this injury but described to the WCB that they first noted symptoms in mid-April 2019 as set out in a WCB file memo dated May 16, 2019. The employer’s representative noted that there were no changes in the worker’s job duties and the worker did not make any report of an injury until May 8, 2019 when they sought medical treatment. The employer’s representative further noted the evidence that the worker was mostly away from work from January through March 2019 and was absent on numerous occasions during April 2019.

The employer’s representative outlined that the employer accepts the findings of Review Office that the worker’s specific job activities and duties would not support the development of bilateral trigger finger in the period leading up to May 8, 2019.

Accident of March 23, 2021 

The employer's position is that the evidence does not support a finding that there is any causal relationship between the worker’s reported symptoms and a workplace accident or incident.

The employer’s representative noted the worker did not report an incident to the employer until April 1, 2021, some 10 days after the injury occurred, but that the worker called in sick instead, suggesting that the injuries were not related to a workplace accident.

The employer’s representative further noted the absence of any witnesses to verify the worker’s report of a workplace accident resulting in their injuries.

The employer's representative pointed out that the available medical reporting suggests that the worker’s symptoms are the result of chronic conditions rather than attributable to any workplace event and noted that experiencing pain at work does not mean that the pain is caused by work. The representative further relied upon the April 27, 2021 opinion of the WCB medical advisor that the worker’s symptoms were related to the worker’s pre-existing and non-compensable health conditions rather than any workplace injury.

Analysis

The worker’s appeal relates to four separate accident claims. The panel considered each claim in turn and made its findings and decision in relation to each claim as detailed below.

Accident of February 2, 2017 

The issue on appeal is whether the worker’s claim is acceptable. For the worker’s appeal to succeed the panel would have to find that the worker sustained a personal injury as a result of an accident arising out of and in the course of their employment on February 2, 2017. As explained in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal on this question is granted.

The panel reviewed the medical reporting in relation to the worker’s right groin injury. We noted that the worker had a prior injury in the same region which was the subject of another WCB claim and that the information in that claim file indicated the worker had been cleared to return to regular job duties in or about December, 2016. We considered that the treating physician, on February 6, 2017, reported a right groin strain injury that occurred at work on February 2, 2017, with clinical findings supporting that diagnosis and a recommendation for physiotherapy to treat the injury and return to sedentary duties. This diagnosis is further supported by clinical findings from a second physician on February 7, 2017, and the follow-up report of February 13, 2017.

The panel considered the worker’s testimony as to how the injury occurred and we find that the worker’s description of the mechanism of injury is consistent with the nature of the injury reported.

The panel does not find that the worker’s delay in reporting their injury until after the subsequent weekend and seeking medical attention is significant. We accept the worker’s explanation as to self-treating their symptoms over the weekend and then seeking medical attention when those symptoms did not improve with that approach.

The panel noted the lack of evidence to support any other cause for the worker’s right groin injury. There is no information before the panel to refute the worker’s description of how the injury occurred.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker sustained an injury to their right groin arising out of and in the course of undertaking their job duties on February 2, 2017. Therefore, the claim is acceptable, and the worker’s appeal is granted.

Accident of January 5, 2018 

The issue on appeal is whether the worker’s claim is acceptable. For the worker’s appeal to succeed the panel would have to find that the worker sustained a personal injury as a result of an accident arising out of and in the course of their employment on January 5, 2018. As explained in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal on this question is granted.

In this claim, the worker reported they “irritated” their left third finger, getting spasms from the finger to their palm and then the finger locking up at work on January 5, 2018 when using a broom and shovel to remove snow from a work site over “the whole morning”. The worker also noted doing cleanup work the previous week, including pulling heavy items. The worker also reported having previous triggering in that finger, which was not treated. The file information indicates that the employer confirmed the worker was sweeping and clearing up snow on the morning of January 5, 2018, but not for a couple of hours as the worker reported.

The panel considered the medical reporting on file and noted that the treating sports medicine physician on January 5, 2018 confirmed the worker’s prior third finger triggering in May and November 2017 and that the worker was most recently seen for that condition on December 11, 2017, with no subsequent physiotherapy provided. The physician noted “tender ++ flexor tendon at MCP” as well as the x-ray findings of two weeks earlier and provided a diagnosis of “acute exacerbation flexor tenosynovitis,” recommending treatment with physiotherapy and functional bracing and light duties. That report also describes a mechanism of injury that is consistent with the worker’s report to the WCB.

The panel also noted the initial assessment report from the treating physiotherapist indicated the worker’s report of “Pain, tightness, triggering of middle finger after sweeping at work” and based on the clinical findings, outlined a diagnosis of “D3 flexor tenosynovitis”.

The panel further considered the report from the WCB medical advisor who reviewed the claim on January 12, 2018 and concluded that “To the extent that this mechanism caused a left hand/third finger injury it would be as a minor soft tissue injury (i.e., strain) …. Note that the injury occurred on a background of pre-accident left third trigger finger.”

The panel accepts and relies upon the medical reporting to support our finding that the worker sustained injury to their left 3rd digit arising out of and in the course of carrying out their job duties on or before January 5, 2018 and aggravated or increased the symptoms of their pre-existing flexor tenosynovitis, as confirmed by the treating sports medicine physician.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker sustained an injury as a result of an accident arising out of and in the course of their employment on January 5, 2018. Therefore, the claim is acceptable, and the worker’s appeal is granted.

Accident of May 8, 2019 

The issue on appeal is whether the worker’s claim is acceptable. For the worker’s appeal to succeed the panel would have to find that the worker sustained a personal injury as a result of an accident arising out of and in the course of their employment on May 8, 2019. As explained in the reasons that follow, the panel was unable to make such a finding and therefore the worker’s appeal on this question is denied.

The panel considered that although the worker claimed an injury to their hands arose beginning in April 2019, they did not make any report of injury until seeking medical treatment on May 8, 2019. The worker did not provide a satisfactory explanation for this delay in reporting of their injury.

The panel also considered the medical reporting and note that on May 8, 2019, the worker reported increasing bilateral hand pain over the course of weeks, and the treating sports medicine physician indicated findings in relation to the worker's right hand only, identifying right 3rd finger triggering, and diagnosed right hand tenosynovitis in relation to that finger, with a query as to possible symptoms of carpal tunnel syndrome. The physician also noted the worker’s pre-existing left third finger diagnosis and removed the worker from work until May 18, 2019. We further noted that in following up with another physician on May 17, 2019, the worker reported additional symptoms of numbness and tingling in their 2nd, 3rd, and 4th fingers bilaterally, with curling of their third finger bilaterally.

The panel considered the evidence in relation to the worker’s job duties leading up to May 8, 2019 and note that the information from both the worker and employer indicates the worker was engaged in a variety of duties requiring various body mechanics. This evidence does not indicate to the panel that the worker was engaged in activities that required significant forceful gripping and repetition sufficient to have caused the worker to develop a cumulative or repetitive use injury as submitted by the worker’s representative.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are not satisfied that the worker sustained an injury as a result of an accident arising out of and in the course of their employment on or leading up to May 8, 2019. Therefore, the worker’s claim is not acceptable, and the appeal is denied.

Accident of March 23, 2021 

The issue on appeal is whether the worker’s claim is acceptable. For the worker’s appeal to succeed the panel would have to find that the worker sustained a personal injury as a result of an accident arising out of and in the course of their employment on March 23, 2021. As explained in the reasons that follow, the panel was unable to make such a finding and therefore the worker’s appeal on this question is denied.

The panel considered that the worker did not make any report of injury to the employer until April 1, 2021 and that the report to the WCB of April 9, 2021 indicates they were working alone at the time. In their WCB report, the worker described straining their back from constantly bending and feeling a twist in their ankle when walking between obstacles on the ground and feeling a pull in their back when lifting heavy items, as well as hip and groin injury aggravation.

The panel noted the absence of any witnesses to the worker’s injury or difficulties at work. The panel also noted the worker’s explanation that they did not report because they did not believe the injury was serious, but that the worker called in sick and did not attend work thereafter until April 1, 2021 when they attended to complete an incident report. We further note that the worker sought medical treatment on March 24, March 31, and April 9, 2021, and find that this does not align with the worker’s explanation for their delay in reporting to the employer or to the WCB.

The panel further noted the absence of any medical reporting that supports the worker’s claim of an injury arising from a workplace accident on March 23, 2021. The panel noted that the worker’s treating physician, in a chart note dated March 24, 2021, indicated the worker “…missed work today reportedly due to chronic joint pains and requested note for same saying [they] wanted to have a note for a few days off work “to take a bit of a rest” but I stated I was not able to support this on the basis of presentation today, altho (sic) did give [them] note for today only on the basis of subjective [symptoms] only”. The physician’s report relating to the worker’s March 31, 2021 assessment records the worker’s complaint of increasing pain in their joints from work, but the panel noted there is no mention of any specific injury to the worker’s back region or ankle.

We further noted the WCB medical advisor’s April 27, 2021 opinion points to the worker’s non-compensable chronic conditions as the cause of the worker’s pain.

The panel finds that the medical reporting supports the medical advisor’s conclusion that the worker’s symptoms arose from various chronic conditions that are not related to any specific compensable workplace accident or incident and further, that there is no evidence of any other injury arising from an accident on March 23, 2021.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are not satisfied that the worker sustained an injury as a result of an accident arising out of and in the course of their employment on March 23, 2021. Therefore, the worker’s claim is not acceptable, and the appeal is denied.

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 5th day of April, 2024