Decision #15/09 - Type: Workers Compensation

Preamble

On July 2, 2008, the worker filed a claim with the Workers Compensation Board (WCB) for lateral epicondylitis of the left elbow which she related to her work duties as a dietary aide. The claim for compensation was denied by primary adjudication and Review Office on the grounds that it could not relate the worker’s left elbow condition to her work duties. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the worker’s representative. A hearing was held on December 11, 2008 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB on July 2, 2008 for a left arm injury that she attributed to her work duties as a dietary aide which involved washing pots and trays and lifting jugs and plates. The worker noted that her entire arm from the top of her shoulder to the tip of her fingers was affected. She stated that she started to notice symptoms a few months ago. The date of accident was recorded as being June 20, 2008 and was reported to the employer on the same day.

The employer’s accident report dated June 26, 2008, noted that the worker had previous cooking experience prior to her current position. She felt that most of her pain occurred while loading dishwashers, (i.e. pushing racks through), washing pots, lifting coffee pots or nourishment trays or lifting from the bottom of the wagon when serving in the dining room. The maximum time spent in any one duty was one hour. It was further indicated that the worker had been in their employ for less than one year. She did not report a specific date of injury. The June 20, 2008 date was used as this was her last day at work. The employer noted that the reported contributing factors did not seem to support the worker’s injury.

Medical information shows that the worker sought medical attention on May 14, 2008 with complaints of a painful left elbow going on for the last two weeks while working as a dietary aide. The diagnosis rendered was lateral epicondylitis of the left elbow.

The worker was assessed by a physiotherapist on June 25, 2008. He noted that the worker had a gradual increase in her elbow/shoulder pain due to repetitive movements at work. The diagnosis was left shoulder impingement syndrome, lateral medial epicondylitis.

WCB adjudication staff contacted the worker and her employer to obtain additional information surrounding the worker’s job duties, the time that she spent performing the duties, the onset of her symptoms, etc.

In a July 23, 2008 decision, the worker was advised that her claim for compensation was denied as the WCB was unable to relate her epicondylitis condition to the following work duties:

  • loading and unloading dishwashers and pushing in the dishwasher trays with the left arm (a task that may be done twice in a shift)
  • washing pots
  • preparation work
  • placing trays of drinks on her left arm while serving with the right arm (a task done either once or twice during a shift)
  • most tasks required the use of both hands

On August 18, 2008, the worker’s representative appealed the decision to Review Office. In support of her position that the claim was acceptable, the worker’s representative stated, in part,

“…[the worker] reports having no prior problems with her left arm, shoulder, wrist or hand. She began experiencing discomfort while doing her work. Her symptoms increased over time, which is the normal course of events given this has been diagnosed as a cumulative trauma. The increase in her symptoms was experienced while she was doing her work. Her job duties include a number of activities, each lasting for about one [1] hour, which are known to be occupational risk factors for the development of epicondylitis.

The Workers Compensation Act provides that where the accident arises out of employment, it shall be presumed the accident occurred in the course of employment unless the contrary is proven. In this case, where there is a clear exposure in the workplace, there is no evidence to support a conclusion there is no relationship between the [worker’s] diagnosis and her work duties. Further, where the accident occurs in the course of employment, it shall be presumed that the accident arose out of employment unless the contrary is proven. In this case, there is no evidence on which to rely, to determine any contrary conclusion.”

In a submission to Review Office dated September 4, 2008, the employer’s advocate contended that the file evidence did not support that the worker’s condition was caused by her work duties. He noted that no specific accident or incident had occurred. The worker’s symptoms were left sided although she is right handed. There was no change in her work duties leading up to the filing of the claim and her workload remained relatively stable. The worker’s work duties were not strictly repetitive and were varied in nature further offering a buffer against a repetitive injury.

On September 24, 2008, Review Office determined that the claim was not acceptable. Review Office was of the opinion that the anatomical movements required to perform the worker’s job duties would not result in the overuse of the wrist extensor muscles. It felt that the worker’s job duties did not involve repetitive resisted or forceful wrist extension movements. Her job duties did not involve the degree of repetition or force that was typically associated with the development of lateral epicondylitis. The worker’s job duties were varied and she performed some of the duties with her right hand. Based on these factors, Review Office concluded that the claim was not acceptable as the evidence did not establish that the worker suffered personal injury by accident arising out of and in the course of employment. On October 6, 2008, the worker’s representative appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

The worker’s position

The worker’s counsel noted the worker had no pain in her left arm before her work with the accident employer. The worker is right hand dominant. She described a number of her duties which involved work with both hands, as well as left handed duties.

The worker described her duties as being responsible for up to 100 residents in the area of food preparation, serving, and clean up. The worker indicated that she worked either of the two day shifts. Her work duties are 75 to 80% manual and involved:

  • Cleaning heavy pots which are always placed on her left side.
  • Filling a three tiered trolley with drinks and food.
  • Stacking dirty dishes onto trays.
  • Making coffee and pouring it into carafes
  • Serving drinks off a tray that she carried on her left arm holding her palm in a face up position.
  • Lifting large heavy pots and tubs of dirty dishes to the sink and dishwasher. Removing items from the dishwasher.
  • Lifting trays (food and dirty dishes) on or off the cart approximately twelve times a shift
  • Using both hands to clear tables
  • Placing full tubs of dishes into the sink for soaking and then using a sink sprayer to rinse.
  • Pushing full trays of dishes along a counter with one hand and forearm.
  • Prepping nutrition wagons which involved filling fridges with bread, milk, juices, and sandwiches. She would be lifting full trays from the cooler and used one hand as much as the other.
  • Carrying, lifting and throwing full bags of garbage into bins.
  • Fast paced work during the early shift as schedules for feeding had to be met.

The worker worked a causal shift routine but she provided evidence that she worked 21 shifts during the month of March 2008. In April 2008 the majority of her ten shifts were in the last half of the month. During this period she often had only one day off in a long schedule. She started to experience pain in the left arm when she was supporting trays on her left arm for serving. The pain was described as a dull ache into her muscles of her forearm. She noticed the symptoms more so when she was loading/unloading dishes or lifting the garbage. When asked why she experienced symptoms in her non dominant arm, she indicated that the work duties were straining her weaker arm.

The worker’s physician eventually took her off work and requested that physiotherapy determine the amount of time off that she required. The worker was taken off work until July 2008. Her evidence was that the physiotherapist treatments and the time away from work has made a huge difference, and she feels 70% better. She has found ways to reduce the use of her left arm and now gets help for lifting.

Counsel provided some supporting material from the Canadian Centre for Occupational Health and Safety and the Mayo Clinic on the diagnosis of epicondylitis. He submitted that gripping, repetition, and lifting caused an overloading of her tendons and muscles. He indicated that there was no other explanation for her condition other than her work demands.

The employer’s position

The employer was represented by an advocate who felt there was no basis to accept the claim. He felt her workload was stable and provided for approximately 12 shifts which afforded a variety of tasks. He also referenced this was a non specific injury and her job duties did not involve constant repetition or excessive force and because she was a causal employee and had variety in her duties she had plenty of recovery time.

Analysis:

The issue before the panel was whether the worker’s claim is acceptable. For the appeal to be successful we must find that the worker suffered an injury by accident which arose out of and in the course of her employment in accordance with subsection 4(1) of The Workers Compensation Act (“the Act”) For the worker’s appeal to be successful, the panel would have to find that her epicondylitis was causally connected to her work duties. The panel has made that finding.

The worker noticed an increase in left elbow pain as a result of the duties in her dietary work. Her symptoms gradually got worse until she saw her family physician who initially took her off work in May 2008 with a referral to physiotherapy. The physiotherapist also confirmed the diagnosis of lateral epicondylitis, provided treatment and recommended a return to her employment effective July 14, 2008.

We find the worker’s duties involved considerable force and some repetition. The heavy loading, unloading, serving and carrying trays involved a number of muscle groups. We find the extensor muscle overuse/overload has lead to the development of epicondylitis. The panel accepts that the worker did not experience any left arm pain prior to working in this facility and further notes that once she got treatment and reduced her work hours along with the amount of heavy lifting and use of her left arm, her condition has improved substantially.

We therefore find based on a balance of probabilities, that her work duties as a dietary aide caused her left elbow lateral epicondylitis and her claim is therefore acceptable.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 19th day of January, 2009

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