The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:

4(1) 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. (emphasis added)

The worker’s position:

The worker was self represented at the hearing. It was submitted by the worker that there were a lot of discrepancies and inaccuracies in the information recorded on the WCB file. A significant amount of time at the hearing was spent reviewing the specific details regarding the events in question.

At the hearing, the worker described an incident which occurred while she was working on June 4, 2010. One of her duties was to refill a cream dispensing machine. This would require her to lift a 10 kg container of cream and place it into the dispensing machine. In order to do so, she would have to retrieve the container from the cooler in the back of the store, carry it to the serving counter, lift it up approximately 18 inches to position it for insertion into the dispensing machine, then push it into place. The worker refilled the creamer three times that day. It was while she was refilling it the second time that the worker felt a "snap" in her wrist. She was pushing the cream container in place when she felt the snap on the top part of her wrist, in line with her middle finger. She continued to perform her duties. Later in her shift, she was reloading the creamer for a third time, and while she was doing this, she felt a pulling in her arm. The sensation stretched from the top of her forearm to just below her elbow. When asked how long the pulling sensation lasted, the worker indicated that it was gone in about 4-5 days.

That evening, after her shift, an aching feeling developed in the worker's right wrist. The worker said: "It felt like my hand was going to fall off my wrist … it felt like it was broken … like there was nothing there … like I don't have no strength in the wrist."

The worker's evidence was that she started to have numbness in her middle and ring fingers a few days after. She tried to call her regular physician to get her wrist examined, but was unable to secure an appointment until June 17, 2010. When she did go in, the worker was not seen by her regular physician, but rather by a student doctor. The worker felt that the student doctor was inexperienced with filling out forms and that he failed to accurately record the information she gave him at that appointment. A general complaint the worker had with her WCB file was that much of the information was not accurately recorded.

The panel asked the worker for more information regarding an incident where the worker banged her right elbow on a flavor machine, which was referenced on the WCB file. The worker indicated that after this occurred, she felt something like a shock in her elbow. It hurt, but did not last long. The worker did not attribute any of her current difficulties to this incident involving her elbow.

When asked about the types of duties she performed, the worker indicated that as a supervisor, she was responsible for assigning duties to other workers, and making sure that all the stations were covered. This meant that she would often move from station to station to allow the other workers to take their breaks. As supervisor, she would have to take her breaks last. She had to be able to fill in at any position, and she usually moved from cashier, to coffee pouring, to food preparation. She would also be responsible for getting change from the office when necessary. When asked about volumes, the worker estimated that during an eight hour shift (she usually worked from 7 am to 3 pm), approximately 180 pots of coffee were served from each station. The cream dispenser would have to be refilled approximately three times per shift.

Analysis:

The issue before us is claim acceptability. In order for the appeal to be successful, the panel must find that the worker suffered an injury to her right wrist during the course of her employment with the accident employer. On a balance of probabilities, we are not able to make that finding.

There are two types of injury which are being claimed by the worker. First, the worker claims that she suffered an acute injury while performing her work duties on June 4, 2010. Second, the worker claims that the CTS which has been diagnosed in her right wrist was caused or aggravated by her repetitive job duties. We will address each injury separately.

Acute Injury

The worker indicated that she felt a pop in her wrist on June 4, 2010. Although there is no mention of a June 4 incident in the doctor's first reports of June 17 and 23, 2010 and the worker incident report, the manager was able to confirm that on June 23, 2010, the worker told him about feeling a pop in her right wrist. This information is reflected in a memo to file dated July 6, 2010, which documents a conversation between the WCB case manager and the employer. Given that the worker told her manager about the incident prior to her WCB claim being rejected, the panel accepts, on a balance of probabilities, that something did happen to the worker's wrist as she was replacing the creamer on June 4, 2010.

The difficulty, however, is that the panel finds that the June 4, 2010 incident was very minor in nature and that worker did not suffer a loss of earning capacity or require medical aid as a result of the incident. The worker's own evidence was that after the snap in her wrist, there was a pulling sensation, but that this only lasted for 4-5 days.

The worker also described symptoms of weakness which developed in her right wrist later that evening and tingling and numbness in her fingers which emerged over the next few days. In the panel's opinion, these symptoms are more likely related to the CTS which was later diagnosed in her right wrist. It is notable that the area of pain which the worker identified as being associated with the "snap" and the carpal tunnel symptoms are in different anatomical areas. Although both involve the wrist, the "snap" symptoms relate to the top of the wrist, whereas the carpal tunnel symptoms are associated with the underside of the wrist. We do not see a connection between the two.

The August 25, 2010 report from the worker's regular attending physician opines that the worker suffered a soft tissue sprain or tendonitis related to the episode on June 4, 2010. The panel is not able to accept this opinion. We note that there are no objective findings reported by the physician which would support this diagnosis. Further, the worker was physically examined by an internal medicine specialist on July 22, 2010 and his report notes: "Normal elbow and wrist range of motion was demonstrated without tendinopathy or tenosynovitis. She was somewhat tender in the distal volar and lateral aspect of her forearm. There was no reproducible pain in her wrist or distal forearm." In view of these findings, the panel does not accept the attending physician's subsequent August 25, 2010 diagnosis of a soft tissue sprain or tendonitis.

We therefore find that there is not an acceptable claim for which compensation benefits are payable in relation to an acute incident which occurred on June 4, 2010.

CTS

The panel also considered whether the worker's job duties could have caused or aggravated the CTS which was identified in her right wrist. On a balance of probabilities, we are unable to find such a causal connection. In the panel's opinion the worker's duties were varied and did not involve the high force and high repetition which is typically associated with the development of CTS. There were opportunities for rest breaks between tasks and the worker did not have to sustain awkward positions for any prolonged period of time. Further, the panel notes that the worker only started employment in this position in April 2010, and in our opinion, it is unlikely that a repetitive strain injury would develop in this short a period of time, particularly given the nature of the duties being performed by the worker.