Decision #133/07 - Type: Workers Compensation

Preamble

This is an appeal by the worker of Workers Compensation Board (“WCB”) Review Office Order No. 301/2007 holding that her claim for compensation is not acceptable.

On December 5, 2006, the worker filed a claim with the WCB for left elbow and forearm pain that she related to her repetitive job requirements as an early educator. Initial adjudication denied the claim as it could not relate the worker’s left elbow difficulties, diagnosed as lateral epicondylitis, to her work activities. The worker appealed the decision to Review Office. On May 3, 2007, Review Office confirmed that the claim was not acceptable as it was unable to establish from the evidence that the worker suffered a personal injury by an accident arising out of and in the course of her employment. The worker appealed to the Appeal Commission and a hearing took place on September 5, 2007. The worker appeared and provided evidence. An employer representative appeared and also provided evidence.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On December 5, 2006, the treating physician diagnosed the worker with a left elbow epicondylitis and possible neuropathy. On March 15, 2007, electrophysiological studies revealed no evidence of an ulnar neuropathy at the left elbow or carpal tunnel syndrome on the left wrist.

Information obtained from the employer stated the worker went to see her doctor because of the flu and then came to work the next day with a note from her doctor about her elbow. They stated they were unaware of any difficulties with the elbow prior to December 5, 2006.

On December 18, 2006, the worker advised the WCB that she is right hand dominant. Her symptoms began in October 2006 and she saw a doctor for the first time on December 5, 2006. She began employment on July 29, 2005 and there had been no increases in her job duties. She began working with infants for a year and then changed to toddlers. She had not been diagnosed with systematic diseases nor does she have high blood pressure. The worker advised the WCB that her present job duties include taking care of six to seven – two year old children. This includes changing diapers every day, every two hours and dressing and undressing children in the winter. She also did minor cleaning. She said she uses her left arm to protect a child against falling down off the change table and her right hand holds the diaper.

The employer described the worker’s job duties as supervising children, changing diapers, picking up children, mopping and sweeping, moving furniture, carrying trays of food, pushing strollers and sleds.

Reasons

Evidence at hearing:

The worker told the panel that she began working as an early educator in July 2005. She initially worked with infants and then moved to working with toddlers. The worker started to experience symptoms in October 2006. The worker said her initial left sided symptoms were in her wrist and moved to her elbow. The worker’s position is that her elbow symptoms are as a result of repetitive lifting. The epicondylitis was diagnosed in December 2006 when she attended her physician with the flu. The doctor diagnosed “elbow epicondylitis knowing that I’m working with children and I’m performing lifting.”

The worker said “I injured my elbow because I was lifting kids. That’s my duties. I was changing diapers, I was dressing, undressing kids, which is especially hard at wintertime because there’s heavy stuff, they putting (sic) boots on, put the boots on for six, seven kids is really hard and that’s why this happen (sic) with my elbow.”

The worker had two physiotherapy sessions and advised the panel that her elbow is getting worse. She thought she may require further sessions of physiotherapy.

The employer advised that two people share the duties involving care for up to 8 toddlers. They said the workplace is structured so that workers are not lifting children above their waist. The majority of toddlers are mobile and are co-operative in accessing the change table. They said that working with toddlers requires less lifting than the infants as the toddlers are more mobile.

Both the worker and the employer confirmed the worker’s duties consisted of general cleaning and tidying, assisting with lunch, assisting the children with naps, helping them get their clothes on and off, and supervising.

The employer said they were not aware the worker had suffered an injury to her elbow that was work related. The employer also said the physical aspects of the worker’s duties are not the primary job responsibilities.

Analysis:

To accept this appeal, the panel must find on a balance of probabilities that the worker’s left lateral epicondylitis resulted from an accident within the meaning of subsections 4(1) and 1(1) of The Workers Compensation Act. Based on both the file and evidence at the hearing, we were not able to make that finding.

The worker feels that her job duties are responsible for her non-specific accident. The panel examined her duties both in the infant and the toddler areas, and considers they are not repetitive, are self paced with considerable breaks between use of her arms, and involve both hands. We find her job duties do not causally link to her diagnosis of epicondylitis.

In conclusion, the panel is not able to find the worker suffered an accident arising out of and in the course of her employment. Her claim is not acceptable and her appeal is denied.

Panel Members

A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

M. Day - Commissioner

Signed at Winnipeg this 4th day of October, 2007

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