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 October 6, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On November 16, 2015, the worker filed a claim with the WCB for a repetitive injury to her right elbow that she related to her job duties, which included mopping, sweeping, vacuuming, wiping tables and wiping floors. The date of incident was listed as February 1, 2011 and the date reported to the employer as November 9, 2015.

The Employer's Accident Report dated November 9, 2015, reported that the worker commenced employment in September 2010, and started to feel pain in her right elbow in February 2011.

Medical information showed that the worker sought treatment from a physician and a physiotherapist and was diagnosed with right elbow lateral epicondylitis.

In November and December 2015, the worker, the employer and a co-worker were contacted by the WCB to obtain additional information related to the worker's work history, her job duties, the reporting of symptoms and the reporting of an accident.

In a decision dated December 21, 2015, the worker was advised that her claim for compensation was denied as the WCB was unable to find a causal relationship between the diagnosis of epicondylitis and her employment duties. The decision noted that although the worker's job duties over a period of four years involved repetitive vacuuming, sweeping, mopping and cleaning, Compensation Services was of the opinion that her duties did not involve a sufficient degree of occupational factors required for the development of epicondylitis. While her job duties were repetitive, they were not highly forceful.

The worker was further advised that Compensation Services was unable to confirm that a workplace accident occurred on February 1, 2011 or that a relationship existed between her right elbow pain and an incident arising out of and in the course of her employment. Given that there was a significant delay in reporting and the worker continued performing her regular duties, Compensation Services was unable to causally connect her symptoms to a workplace accident.

On December 28, 2015, the worker appealed the December 21 decision to Review Office. A response to the worker's submission from the employer's advocate dated February 8, 2016 and the worker's final submission to Review Office dated February 18, 2016 are on file.

On February 26, 2016, Review Office confirmed that the worker's claim was not acceptable. Review Office found the worker's job duties were not repetitive in nature, and the tasks she performed did not have the common risk factors associated with lateral epicondylitis.

Review Office stated that the worker's job duties were not heavy duties and she did several different activities during her shift. Review Office noted with common risk factors not present, the condition remained constant and improved over time while she continued with normal duties. On a balance of probabilities, her condition was not related to her job.

On March 14, 2016, 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) ("accident") 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 represented by a worker advisor, who provided a written submission in advance of the hearing and made a presentation on the worker's behalf. The worker was provided with the services of an interpreter, and responded to questions from the worker advisor and the panel.

It was the worker's position that her right lateral epicondylitis was the direct result of her repetitive workplace duties, and her claim was therefore acceptable. It was submitted that this was consistent with a letter from her treating specialist dated June 20, 2016 which stated that the worker had been attending their clinic "regarding her right elbow issue which is secondary to overuse condition due to her type of job that she does." The worker advisor noted that the medical information further showed no degenerative condition to which the worker's difficulties could be attributed, and there was no prior history of any injury to the worker's elbows.

The worker confirmed that she started work with the employer in September 2010, and worked four hours a day or 20 hours a week. She described her typical duties as collecting garbage, sweeping floors, wiping tables, computers and other surfaces, wiping chalkboards, and washing sinks and washrooms. She indicated that there were approximately 330 desks and 31 sinks that had to be cleaned, as well as 18 chalkboards. The chalkboards were old and very hard to clean, and she had to use more force to clean them. She said she performed the same duties every day, as well as certain additional duties at particular times of the year. The worker worked in the same area for the first three and a half years, then moved to another area which was considered to be a little bit easier. She said that her duties in the new area were similar, but with some differences, in particular she had fewer sinks to clean and now had some vacuuming to do.

The worker said that her problems developed gradually, and she started to feel pain in her elbow about six months after she started working for the employer. Asked why she believed the workplace duties caused her injury, the worker stated that was the only way it could have happened, as she did not work outside the job, she had no hobbies and did not play any sports, and she was not doing cleaning or household chores at home. She also stated that her elbow would get a little better when she had a break and could rest it, but the pain would gradually return when she went back to work. She said she never had elbow problems before she started working for the employer.

In conclusion, the worker advisor submitted that the worker's assigned tasks were repetitive and forceful enough to cause her symptoms and condition, and that on a balance of probabilities, it was reasonable to conclude that the worker was injured in the course of performing her repetitive workplace duties and that her claim is acceptable.

Employer's Position

The employer was represented by an advocate. The employer's position was that the claim was not acceptable, primarily because the job duties would not cause lateral epicondylitis, but also because the onset of difficulties was unclear, and the delay in reporting was a bar to the claim.

It was submitted that even if the worker had reported her condition on a timely basis, the diagnosis of right lateral epicondylitis was not consistent with the worker's job activities. The advocate noted that after factoring in a 15 minute break, the worker worked less than four hours a day. The evidence showed that she performed a variety of different tasks, none of which were sustained for a prolonged period of time or involved repetitive and vigorous movements of the forearm and elbow against force or requiring a strong grip. It was submitted that the worker's duties did not entail the common risk factors for the development of epicondylitis, and the claim is not acceptable.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find that the worker's right lateral epicondylitis was causally related to the performance of her job duties. The panel is unable to make that finding.

The panel carefully reviewed the worker's job duties with her at the hearing. The panel notes that information provided by the worker at the beginning of her claim indicated that mopping, sweeping, vacuuming, and wiping tables and floors caused her condition. At that time, the worker described vacuuming or using the cleaner as the most difficult jobs. She subsequently indicated, however, that she did not use the cleaning machine, and her evidence at the hearing was that she did not do any vacuuming until she changed areas approximately three and a half years after she started her job, or three years after her symptoms were said to have appeared.

The panel also notes that the worker made no reference at the beginning of the claim to chalkboards or any problems with chalkboards, yet at the hearing she referred to cleaning the chalkboards as the most difficult job and the one which hurt the most. The evidence indicates that she had been cleaning chalkboards since she started working for the employer.

The worker's evidence at the hearing was that she had several rooms to clean each day, and would do each room separately. She did the same work in each room and would finish the whole room before moving on to the next one. She estimated that altogether it would take her approximately 20 minutes to do everything in each room, including collecting garbage, wiping tables and other surfaces, cleaning chalkboards, sweeping and mopping. She was unable to provide a breakdown of the amount of time she spent on each of her duties, but thought that dusting and wiping the tables and other surfaces probably took the most time. The evidence does not show that the worker spent extended periods of time performing any particular movement or duty.

In response to questions from the panel, the worker described her movements when performing her various job duties. Based on her description, the panel is satisfied that the worker's duties were relatively light overall and did not involve the degree or type of vigorous movements and forceful gripping that is associated with lateral epicondylitis. For example, the worker said she would use a wet cotton rag when wiping tables, her longest job. She would hold the rag loosely and her wrist would be in a neutral position when wiping the table. After every four tables, she would rinse the rag in a pail of solution and wring it out.

In conclusion, given the variety of duties which the worker performed, the physical postures required, the nature of those duties and the fact that they were performed alternately and no single duty was performed for any sustained or extended period of time, the panel finds, on a balance of probabilities, that the worker's right lateral epicondylitis was not causally related to the performance of her job duties.

The panel therefore finds that the claim is not acceptable.

The worker's appeal is denied.

Panel Members

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

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 30th day of November, 2016