The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 30, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on October 30, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On April 17, 2002, the claimant filed an application for compensation benefits in relation to carpal tunnel syndrome (CTS) which she related to the repetitive nature of her work duties as a heath care aide on April 1, 2002. Information obtained from the employer concerning this claim indicated that the claimant never filled out an injury/illness report and that she had undergone CTS surgery on April 3, 2002.

In a report to the family physician dated January 21, 2002, a specialist reported that the claimant had CTS involving her right hand and may have early CTS on the left side. He noted that the fingers on the right hand had been numb for about the past five years and seemed to be getting worse. The specialist noted that he was asking for approval from the Workers Compensation Board (WCB) to perform right carpal tunnel decompression and that a tentative surgery date was booked for April 3, 2002.

Following discussions with the claimant and the employer about the mechanics of injury and the reporting aspects of the claim along with consultation with the WCB's healthcare branch, primary adjudication determined on July 2, 2002 that the claim for CTS was unacceptable. Primary adjudication specified that there was insufficient evidence to indicate that the claimant's CTS was caused by her employment. On April 24, 2003, the claimant's union representative appealed this decision to Review Office.

In a decision dated May 30, 2003, Review Office noted that the activities of a health care aide were not causative in the development of CTS as it was generally accepted by the WCB that for a claim to be approved, it must be shown that the job duties of the worker must involve repetitive flexion and extension of the wrist against resistance. Review Office did not feel that the claimant's job description met the general criteria that the Review Office sought in order for the claim to be acceptable. Review Office did not feel that the stressors placed on the claimant's right wrist were significant enough to be deemed the cause for her condition.

Review Office further noted that the claimant admitted to mending clothes through use of a sewing machine, gardening and crocheting. Accordingly, the claimant was involved in hobbies or interests which involved repetitive use of her hands. Review Office agreed with the adjudicator's decision that the claimant's right hand CTS condition did not arise out of and in the course of her employment. On July 16, 2003, the union representative disagreed with Review Office and an oral hearing was arranged.

Reasons

Section 4(1) of the Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."

In keeping with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of section 1(1) of the Act. An accident is defined as, "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

1. event arising out of, and in the course of, employment, or
2. 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."

We find the claim to be acceptable. In coming to this conclusion, we carefully assessed the claimant's job duties especially those duties involving the changing of the soaker pads and the cleansing of residents who had soiled themselves. It became apparent that these activities required awkward positioning and high force and as such are, on a balance of probabilities, consistent with the claimant's developing carpal tunnel syndrome. The claimant sustained an accident arising out of and in the course of her employment, which resulted in injury. Accordingly, the claim is acceptable and the claimant's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 4th day of December, 2003