The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

This appeal deals with claim acceptance. Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

Worker's Position

The worker attended the hearing with her husband and an interpreter who translated the panel's comments and questions and the worker's replies. The panel asked the worker questions about her work duties, her injury and symptoms.

The worker said she works as a dietary aid (kitchen aid). She attributed her symptoms to the repetitive nature of her employment and specifically to tasks associated with operating the dishwasher.

In answer to questions from the panel, the worker described in detail the task of loading the dishwasher trays and pushing them into the dishwasher. The weight of items loaded on to the dishwasher trays varies with some pots weighing up to seven pounds. She indicated that she loads the dishwasher approximately 30 times each shift. She loads dishes onto trays which can weigh approximately 15 pounds when loaded. The trays are square plastic containers which she pushes along the counter, one at a time, into the dishwasher. There are no wheels on the trays and the counter does not have a conveyor belt. When the dishwashing cycle is completed she pulls the trays out the other side and puts the dishes away.

The worker advised that at the time of the injury she had to put the empty trays away on high shelves. Since her injury she is allowed to leave the trays at counter level. She estimated that the empty trays weigh approximately two pounds each.

The worker said that she is continuously pre-washing dishes, loading trays, loading the dishwasher, unloading the dishwasher and putting away dishes.

The worker described other duties which she performs in her seven hour shift. She cleans and disinfects tables in the lunchroom, then sets the table with cutlery, dishes and other items (such as sugar, salt and pepper). She serves meals to the residents including beverages. She places a water pitcher on each table and pours coffee and tea at the table using a small carafe (six cups).

The worker said that she cleans up in the kitchen which includes transporting approximately eight bags of garbage to a garbage room. The bags can weigh up to ten pounds. She does not have to lift the bags or throw them in a bin.

The worker advised that in each fourteen day period she works eight seven hour shifts.

The worker advised that approximately 40 residents eat in the dining room and another 20 are fed in their rooms. With respect to the latter group, she said that she uses a cart to transport the meals to a nurse who serves the meals manually.

The worker said there is five staff in the kitchen. One cook and an assistant work the early shift while the other cook and two assistants work the late shift.

The worker advised that at the time of the injury there were heavy doors that had to be opened. She said that the door between the lunchroom and the hall was very heavy and had to be pulled open with a doorknob a minimum of 30 times a day. She also had to retrieve supplies from the storage room by holding the supplies in one hand and pulling with the other. She advised that since her injury the doors are left open.

The worker advised that "I had a little bit of problems prior to the beginning of November, but I felt it was mostly due to long days, overworked days. It was the beginning of November that everything became a lot worse."

With respect to pain, the worker advised that: "It started - the pain actually started slowly in the elbows, not too sharp, and then over the following days the pain got sharper and sharper and moved up my arm into my shoulder and up to my neck also."

The worker said that her symptoms did not improve while she was away from work. Currently when she is using her right elbow, her pain is about five on a ten point scale. When she is not using her arm she has no pain. She said her left arm no longer bothers her, not even at work.

The worker advised that she missed two days of work due to the injury. She also advised that she is currently on sick leave due to being overworked.

The worker explained that she had to travel abroad on short notice on a personal matter. She left on November 12, 2010 and returned on December 4, 2010. She did not seek medical attention until she returned. When asked why she did not see the chiropractor before she left the country, she replied that she wanted to avoid a lot of paperwork by getting her claim number before she saw the chiropractor.

The worker thought she had reported her injury to her supervisor before she had left the country but acknowledges that her supervisor says she does not recall being informed.

The worker started her medical treatments on December 20. She had five treatments. She was not given any prescription medication.

The worker submitted that her injury was caused by her employment and should be accepted.

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker is appealing the WCB decision that her claim for injury to her elbows is not acceptable. For the worker's appeal to be accepted, we must find that worker sustained an injury to her right and left elbows as a result of performing her work duties. We are not able to reach this conclusion. We are not able, on a balance of probabilities, to relate the worker's bilateral elbow complaints to her work duties.

In reaching this decision we have considered the complete claim file and the worker's evidence at the hearing. While we found the worker to be a credible witness, we are not able to find that she sustained a workplace injury.

The worker told the panel that she thought her injury resulted from long, overworked days. She had some problems before November 2010 but it became worse in early November 2010. We reviewed the worker's job duties in detail at the hearing. We considered the duties related to the dishwasher and also the totality of her duties. We were not able to find that the duties involved sufficient force, lifting, weight or repetition to cause the worker's bilateral elbow complaints and related complaints. We found that the worker's job consists of a variety of duties and did not involve significant repetition.