The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim for compensation was not acceptable. A hearing was held on March 22, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for an injury to her right wrist and elbow. The date of incident was recorded as May 29, 2014 and the date it was reported to the employer as March 17, 2015. The worker described her job duties as a dietary aide which included: stripping trays (racking plates and cups and throwing leftovers in the garbage), washing bowls, putting away and stacking dishes, lifting 25 kg boxes, delivering trays to the residents and removing them after they have finished eating, cutting meat, prepping food and measuring food for the next day.

The worker reported that she started her employment on July 22, 2013. She said that she first noticed symptoms at home in May 2014. She went to see a doctor in May 2014 as her hand was going numb in the middle of the night. She was referred to a specialist, who diagnosed a pinched nerve and prescribed a brace. The worker indicated that she wore the brace as needed when the pain was bad. On March 13, 2015 she noticed her wrist was more sore than usual.

The Employer's Accident Report noted that the worker reported an accident to her supervisor on March 17, 2015 with the accident date of May 29, 2014. The worker attributed her right wrist and elbow discomfort to the repetitive nature of her work duties.

In March 2015, a WCB adjudicator spoke with the worker and the employer to obtain additional information related to the worker's employment history, job duties, onset of symptoms, reporting information, etc.

Medical information showed that the worker had nerve conduction studies done in May 2014 that showed mild right median neuropathy. In April 2015, repeat nerve conduction studies showed moderately severe median neuropathy in the right wrist.

By letter dated April 16, 2015, the worker was advised that the WCB denied responsibility for her claim. The WCB's position was that the worker's job duties did require some involvement of the wrists with gripping, pulling and pushing, etc. but they did not require high repetition involving full flexion and extension and a significant amount of mechanical stress. High force and high constant repetition were not evident as the worker performed a variety of duties throughout the day. On June 20, 2015, the worker appealed the decision to Review Office.

On July 22, 2015, Review Office confirmed that the claim was not acceptable. Review Office referred to evidence on file in support of its findings that a causal relationship did not exist between the development of the worker's right carpal tunnel syndrome ("CTS") and her employment as a dietary aide. On August 26, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

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 provide 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 was self-represented. The worker provided a written submission in advance of the hearing, which included her work schedules and job descriptions for a number of the dietary aide positions. The worker made a presentation at the hearing and responded to questions from the panel.

The worker's position was that her CTS was related to her work as a dietary aide. She said that at the beginning, she had been getting numbness in her right hand. She went to see a neurologist in May 2014. He said she had a pinched nerve in her hand and advised her to wear a brace and see if it improved. She said it had been getting better, then on March 13, 2015 she noticed her right hand was starting to hurt and the pain was shooting up her arm. She returned to the neurologist who did a nerve conduction study and diagnosed CTS. He gave her a doctor's note which set out work restrictions of limited repetitive movement and no lifting over 10 lbs. She took the note to her boss who said that she could not accommodate the worker and would have to take her off the schedule as her whole job was nothing but repetitive. The worker said that she was off work for a month then returned with somewhat modified duties. She had surgery for CTS in October 2015, and her hand was doing well now.

The worker noted in her notice of appeal that while she did not work more than 77¾ hours in a two-week period, there were times when she was working 10 full days straight. She referred to the job positions that she mostly worked, and the duties she performed in those positions, and submitted that taking into account what her actual duties were and that she them did every day, sometimes 10 days in a row, the job was repetitive enough to cause her injury.

Employer's Position

The employer was represented by an advocate. The employer's position was that they agreed with the Review Office decision that the claim was not acceptable.

It was noted that the worker related the development of her CTS to both the work duties she performed and a perceived increase in work, and that both of these factors had been specifically rejected by the WCB as causes for her CTS.

The employer's advocate stated that the worker performed a variety of job duties in her role as a dietary aide, and the work was done on a rotating basis. A Physical Demands Analysis ("PDA") confirmed that there were varied duties. It was submitted that the employer agreed with Review Office's conclusions that the job duties identified by the worker and the PDA were not consistent with the occupational risk factors associated with the onset of CTS symptoms, and that the evidence did not support that there was high force, high repetition, awkward wrist positioning or vibration.

With respect to the matter of increased workload, it was noted that the worker never worked more than 77¾ hours in a two-week period, which equated to less than full-time employment. The employer therefore agreed that the workload was not enough to cause CTS.

It was further noted that the worker's neurologist advised in his report of May 29, 2014 that while the worker's reported signs were indicative of CTS, there were no confirmed clinical signs and the nerve conduction studies were borderline. It was submitted that this would seem to mean that they were inconclusive.

In conclusion, it was submitted that there was insufficient evidence to relate the worker's CTS to her work duties and that the claim did not meet the definition of a workplace accident under the Act.

Analysis

The issue in this appeal is claim acceptability. For the worker's appeal to be acceptable, the panel must find, on a balance of probabilities, that the worker's right CTS arose out of and in the course of her employment. The panel is not able to make that finding.

The panel notes that some of the most common occupational factors associated with CTS include a combination of repetitive and forceful motions for prolonged periods of time. Occupationally-related CTS is found where the job duties involve high force and high repetition.

In the course of the hearing, the panel carefully and meticulously reviewed with the worker the nature of her job duties, the time she spent doing different duties, her positioning while performing her duties, and the use of her hands.

The evidence indicated that at the beginning of 2014, when the worker first started to have symptoms in her right wrist, she was working mostly a 3½ hour evening shift. Her duties on that shift included serving dinner to the residents in a particular area, then spending the last 1½ hours working in the dish room. In the dish room, there were 4 different stations, involving different tasks. Workers would rotate through the stations from one shift to the next. The worker identified two tasks as being challenging in terms of her wrist. The first involved scrubbing out bowls, where she would soak the bowls, then scrub them with her right hand while holding the bowl with her left hand. The second task involved putting dishes away. The challenges were dealing with the full cutlery trays which were awkward and heavy, weighing probably 15 to 20 lbs., and with the pace at which the work had to be done. The panel notes that at each of these stations, the worker would also be doing a number of other tasks. The tasks where bowls were scrubbed would also include spraying trays and stacking lids and spraying them. With the cutlery area, the tasks would also include putting away bowls, plates, cups and glasses.

The worker also did some 7¾ hour shifts where, if she was in the dish room, she would have to do the same type of duties as the evening shift, but twice, as well as certain side duties. If she was in the beltline area, she would work at one of 5 stations. In this area she would spend periods of time during the day setting out food on trays for meals. The worker said that the challenging tasks for her wrist in this area were at the two stations where she had to scoop meat and vegetables onto plates. Again, workers would rotate to different stations in this area on different days.

Based on the evidence, the panel is satisfied that the worker performed a wide variety of job duties and movements during her shifts. While the duties which the worker focused on could potentially have led to problems, the panel notes that the variety of tasks and the rotation within the stations prevented high repetition. Tasks were not done constantly or over long stretches of time but, for the most part, were performed over relatively short periods of time, with breaks and rest cycles in between.

The panel further notes, based on the worker's description of the job duties and her demonstration at the hearing of how they were done, that the worker's right wrist was generally in a neutral position when she was performing her job duties, which is not consistent with the type of positioning that would typically cause CTS. The panel also notes that the job duties as the worker described them did not involve the use of significant force, and the weights which she was required to lift were generally less than 5 to 8 lbs.

It is also significant that the worker stated in her Worker Incident Report that her symptoms started at home in May 2014, as opposed to at work. The panel notes that the neurologist also indicated on May 29, 2014 that the worker had developed a numbness/tingling in her right hand which occurred occasionally during the daytime, but that her symptoms were worse nocturnally, and that "since wearing a night time right wrist splint in the past 3 weeks, she has had no nocturnal paresthesia and her day time paresthesia has also got less."

In conclusion, having carefully reviewed and considered all of the evidence, the panel finds, on a balance of probabilities, that the worker's CTS is not related to or caused by her workplace duties. The claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 17th day of May, 2016