Decision #85/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on June 15, 2004, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on the same day.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
In September 2003, the worker telephoned the call centre at the Workers Compensation Board (WCB) to report difficulties that she was having with her right wrist which she related to her job duties as a health care aide. The worker indicated that she first noticed symptoms in June 2003 and believed that heavy lifting, positioning, turning and pulling patients caused numbness, tingling and pain in her hands/fingers.In a report to the family physician dated August 1, 2003, the treating physical medicine and rehabilitation specialist reported that electrophysiological results were consistent with severe carpal tunnel syndrome on the right and mild to moderate carpal tunnel syndrome on the left. He stated that the worker's right hand symptoms were significant enough to warrant surgery. He commented that the worker should be screened for diabetes and hypothyroidism in case these conditions were contributing to her findings.
On September 19, 2003, a WCB adjudicator contacted the worker and obtained further information regarding her job duties, the onset of her symptoms, her prior medical history and extra-curricular activities.
On September 22, 2003, the WCB adjudicator advised that the WCB could not accept the claim based on the following rationale:
- "No accident or incident at work
- No changes in job duties or increases in workload to account for the onset of symptoms
- Job duties not overly repetitive or requiring rapid movements of the wrist against force
- Pre-existing non work related risk factors."
On December 12, 2003, Review Office confirmed that the claim was not acceptable. Review Office noted that there were many other non-work related factors which were known to contribute to the development of carpal tunnel syndrome. A number of these affect the worker which included gender, age and weight.
After reviewing the file information, Review Office found that although the worker's job required involvement of the wrists, i.e. lifting, pulling, pushing and twisting, etc., her job did not involve a significant amount of mechanical stress and force. There was a variety of duties and high constant repetition was not evident. On a balance of probabilities, Review Office concluded that the worker's bilateral carpal tunnel syndrome was not work related and thus, did not meet the test required by Section 4(1) of The Workers Compensation Act. On April 19, 2004, a union representative, acting on the worker's behalf, appealed Review Office's decision and an oral hearing was arranged.
Reasons
As noted in the background, an oral hearing was convened. The worker attended with a union representative who made a submission on her behalf. An employer representative attended and made a submission on the employer's behalf.The issue before us was whether the worker's claim was acceptable. The worker claimed for right handed carpal tunnel syndrome which required surgery that she has related to her job duties. It was noted that the worker has also been diagnosed with slight left handed carpal tunnel syndrome but has not been treated for this condition and has not made a claim to the WCB in relation to this condition.
For the worker to be successful we must find that the worker's right handed carpal tunnel syndrome was an accident which arose out of and in the course of her employment. We were able to make this finding.
Section 4(1) of the Act provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of or in the course of employment. For compensation to be paid there must be an accident as defined in Section 1(1). "Accident" is broadly defined to include:
"a chance event occasioned by a physical or natural cause; and includes
- A wilful and intentional act that is not the act of the worker,
- any
- event arising out of, and in the course of, employment, or
- thing that is done and the doing of which arises out of, and in the course of, employment, and
- an occupational disease
At the hearing the worker provided detailed evidence of her job duties. Her evidence, which was not disputed, gave us a clear understanding of the duties she performed on a nightly basis. As a night shift worker in a personal care home, she had responsibility for 18 patients, the majority of whom were incontinent and unable to move without assistance. Her duties included making several rounds each night changing incontinent patients, removing wet soaker pads, turning patients on their sides and waking and dressing the patients. The evidence confirmed that these duties involved awkward positioning of the wrists and hands and the use of high force. On each shift there was significant involvement of the wrists in lifting, pulling, pushing, and twisting which involved extreme bending of the wrist and hand gripping. There was also significant mechanical stress and force. These were most obvious in the claimant's descriptions of how she changed the soaker pads and how she had to prop the patients while doing the job.
We find, on a balance of probabilities, that there is a direct causal relationship between the worker's duties and the onset of her right handed carpal tunnel syndrome. As a result we find that the worker sustained an accident arising out of and in the course of her employment, which resulted in injury. Accordingly the claim is acceptable and the worker's appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
B. Malazdrewich, Commissioner
Recording Secretary, B. Miller
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of June, 2004