Decision #08/17 - Type: Workers Compensation
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 November 24, 2016 to consider the worker's appeal.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is acceptable.
Background
On April 1, 2016, the worker filed a claim with the WCB for an injury to her right wrist that she attributed to the following work duties: pushing and pulling a service cart, pouring drinks from heavy coffee pots, placing items into overhead bins, and pulling her own personal items. The worker reported that the injury occurred over a period of time and she first noticed symptoms on March 6, 2016. She self-treated with exercises and ice, and did not report the injury to her employer until March 29, 2016.
The Employer's Incident Report stated: "On March 6, 2016 was working a 3 leg day and at the end of the day felt her wrist start hurting, believes this is a repetitive injury."
On April 15, 2016, the worker discussed her claim with a WCB adjudicator. The worker reported that she had been with her employer for eight years. On March 6, 2016, she started a four day rotation, and by the end of that day, her right wrist was throbbing, swollen and somewhat painful. She made no report to her crew lead or co-workers and there was no specific incident or injury she could recall. She continued to work through the pain over the next three days without making any complaints or reports. When she returned to work on March 28 and 29, she felt an increase in her right wrist pain and discomfort. By the end of the day on March 29, she was unable to lift items from the overhead bins. On March 31, she sought medical attention.
In e-mail correspondence dated April 21, 2016, the worker stated that she should have called in her claim earlier but thought her condition would get better as she had some time off in between her shifts.
On May 10, 2016, the worker was advised that her claim for compensation was being denied as the WCB was unable to establish a relationship between her right wrist difficulties and an accident as defined in subsection 1(1) of The Workers Compensation Act (the "Act"). On May 30, 2016, the worker appealed the decision to Review Office.
On June 17, 2016, Review Office confirmed that the claim was not acceptable.
Review Office found that the worker's job duties were not repetitive in nature as she completed different tasks at work which were varied and did not involve pushing/pulling, twisting and/or gripping motions against force or in the environment of heavy work. The worker's job duties had not changed to involve any duties she was not accustomed to, and she confirmed there was no specific incident or occurrence to cause her wrist discomfort while at work. Review Office found the evidence did not support a specific incident or event "arising out of and in the course of" the worker's employment to cause her wrist injury, and her job duties did not include any risk factors for developing a repetitive strain injury. On August 9, 2016, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by 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 self-represented. The worker made a presentation and responded to questions from the panel.
The worker's position was that she suffered an injury to her wrist at work on March 6, 2016 and her claim ought to be accepted. She said she was not quite sure what happened, just that she was injured on March 6 and her wrist was extremely painful by the time she finished work that evening.
The worker said her shifts are generally between one and five days away from home, and her shift at that time was for four days, starting March 6. She slept that night, then worked the remaining three days of her shift. She had four days off after that, from March 10 to 13, and was away ill from March 14 to 17. She worked next on March 18, but her co-worker helped her with her serving duties and she did not have to lift any items. She was off work again from March 19 to 27, having dropped her March 20 to 23 shift in order to rest her wrist.
The worker returned to work for a four-day shift on March 28, but by the end of the day on March 29, her wrist had become enormously inflamed and red, and she could not take the pain anymore. She called the employer late that night and returned home the next day. She saw the doctor on March 31, then started physiotherapy and massage therapy, as well as doing stretching exercises.
The worker said her wrist is back to normal now. She noted that she has completely changed the way she serves, and no longer has to lift items into overhead bins.
Employer's Position
The employer did not participate in the appeal.
Analysis
The worker is appealing the Review Office decision that her claim for a work-related injury is not acceptable. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a personal injury by accident arising out of and in the course of her employment. The panel is able to make that finding.
The panel carefully examined the worker's physical job duties with her at the hearing. The worker was able to identify different parts of the job which were hard on her wrist and elbow. She referred in particular to her serving duties, indicating that coffee and other drinks had to be poured over the top of the cart itself, within a relatively confined area. The worker stated that the tops of the service carts had been raised a few inches less than a year before, with the result that she would have to lift her arm even higher, such that her elbow would be positioned around the height of her face when she was pouring drinks. The worker also referred to having to place items in overhead bins, and indicated that this had become even harder recently, as weight restrictions had been removed in late 2015 or early 2016 and she had to lift heavier items up into and out of the bins. The worker could not say what specifically happened on March 6, 2016. She said she had never been injured at work before, and must have just "tweaked" something that day. The evidence indicated that she worked three short legs on March 6, and had limited time to complete all her serving duties. She said she first noticed the problem around the second leg of the day, because by the end of the third she was in pain. She iced her wrist before going to bed that night and it started feeling better, but the pain came right back when she started to work the next day, and her wrist kept hurting with anything she did over the next three days, particularly with serving.
From the worker's description of her duties, the panel notes that they involved significant flexion of the wrist, as well as torquing and twisting outside the body envelope. The worker experienced pain in her forearm and wrist, consistent with areas that would be hurt in the performance of those job duties. Based on the evidence before us, the panel finds, on a balance of probabilities, that the worker suffered an acute injury in the course of her employment on March 6, 2016.
The worker was diagnosed by the treating physiotherapist on April 6, 2016 with acute wrist tendinopathy and elbow tendinopathy. The panel accepts these diagnoses as being consistent with the odd or awkward posturing which was involved in the worker's performance of her job duties.
The worker's evidence at the hearing was that her last physiotherapy treatment was at the end of April 2016, at which time she was advised that she could go back to work. She started back to work on modified duties, used a brace for two months, and was back to working her full time regular duties by June or July 2016. In the panel's view, the resolution of the worker's condition within this period of time further supports that she suffered an acute injury on March 6, 2016.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker sustained an acute injury by accident arising out of and in the course of her employment on March 6, 2016, and her claim is acceptable.
The worker's appeal is allowed.
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 19th day of January, 2017