Decision #39/17 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable. A hearing was held on March 30, 2017 to consider the worker's appeal.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is acceptable.
Background
The worker filed a claim with the WCB on June 10, 2016 for injuries to his right hand, pinky finger and palm with an accident date of June 8, 2016.
On June 16, 2016, the worker spoke with a WCB adjudicator to discuss his claim. The worker stated:
- He has been employed as a healthcare aide for 18 years. There was no change in his position.
- The mechanism of injury was: using mechanical lift to turn the resident; putting the sling under the resident to turn them; pulling resident toward him; within the pulling motion the pain was felt.
- He experienced numbness in his right hand palm and right pinky finger.
- He mentioned to a co-worker that he felt the numbness.
- He had no previous problems with his right hand or had no other health-related conditions.
The worker sought medical attention on June 9, 2016 and was diagnosed with ulnar neuropathy.
On June 22, 2016, the worker was advised that an accident had not been established and that his claim for compensation was not acceptable. The worker was advised that there were many factors that would cause ulnar neuropathy and while he did experience pain while at work, it would not cause ulnar neuropathy. On June 26, 2016, the worker appealed the decision to Review Office.
On August 9, 2016, the accident employer's representative stated that they agreed with the decision of June 22, 2016 as the diagnosis of ulnar neuropathy was not congruent with the mechanism of injury.
On September 7, 2016, Review Office confirmed that the claim was not acceptable as it was unable to determine that an accident had occurred. The worker was in the normal course of his regular duties, there had been no change in these duties nor was there any chance event which may have caused the injury. Review Office indicated that the simple and singular act of moving a resident was not likely to result in an injury to the ulnar nerve. On October 3, 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.
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.
Accident is defined in subsection 1(1) of the Act, which provides as follows:
"accident” means a chance event occasioned by a physical or natural cause; and includes
(a) a willful and intentional act that is not the act of the worker;
(b) any
(i) event arising out of, and in the course of employment, or
(ii) thing that is done and doing of which arises out of, and in the course of,
employment, and
(c) an occupational disease,
and as a result of which a worker is injured;
Worker's Position
The worker was self-represented. He explained his reason for appealing and answered questions from the panel.
The worker described his general duties at the institution and the types of residents that he deals with on a regular basis.
The worker said that the injury occurred when he was dealing with a large, male resident who suffered from a disabling behavioral condition. The resident was known to be aggressive, however, he had previously been provided with medication to lessen resistive actions. On the day of the accident the worker noted that the resident was more aggressive than usual. The worker said that he learned after the accident that the resident's medications had been reduced which resulted in an increase in his aggressive behavior.
The worker explained how he and another staff member attempted to bathe and dress the resident. He said that the resident became aggressive and resisted efforts to turn him on the bed. The worker said that he felt pain in his right hand while he was pulling and holding the slider sheet. He said that he was firmly griping the slider sheet with his arms widespread and fully extended to hold the resident on his side for an extended period of time. Once he eased the pressure on the sheet, he felt pain in his right hand and his right baby and ring fingers were numb. The numbness went down to his wrist from the tips of his fingers.
Employer's Position
The employer did not attend the hearing but provided a written submission outlining its position on the claim. In her submission, the employer's representative stated that "We agree with this decision as the diagnosis of ulnar neuropathy is not congruent with the mechanism of injury."
The employer representative noted that the worker was in the course of his regular duties-activities which would not normally be associated with the diagnosis of ulnar neuropathy. She noted that ulnar neuropathy is often idiopathic or unknown. She identified the common causes of ulnar neuropathy which included:
- Sleeping with elbow bent
- Leaning on the elbow for long periods of time
- Fluid buildup in the elbow
- A direct blow to the inside of the elbow
The employer's representative concluded that the worker's condition does not meet the definition of an accident and therefore the decision should be upheld.
Analysis
The worker is appealing the WCB decision that his claim is not acceptable. For the worker's appeal to be approved, the panel must find that the worker sustained an injury by accident arising out of and in the course of his employment. The panel was able to make this finding.
The worker provided a detailed explanation of his job duties, in general, and his activities at the time of the accident. The panel found the worker to be forthright and his description of the events surrounding the accident to be reasonable. Accordingly the panel finds, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of his employment on June 8, 2016.
The panel accepts that in the process of attending to a large resident with an aggressive behavioral condition, the worker injured his right hand. The worker explained that he was holding the slider sheet firmly with both hands for a prolonged time because the resident was aggressive and non-compliant. His activities involved firmly gripping the slider sheet, pulling the slider sheet and rolling the resident onto his right side during which he felt pain in his right hand. When he loosened his hold on the slider sheet, he felt pain, numbness and tingling in the small and ring fingers of his right hand. The panel finds that the work activity caused the injury.
The panel notes that the treating physician provided a diagnosis of ulnar neuropathy. The panel also notes that the actions of the worker are not generally associated with this diagnosis. The panel finds that the worker felt numbness while physically assisting the resident, that the numbness was in an ulnar distribution and that the numbness disabled the worker from using his right hand. The panel notes that the worker followed the treating physician's recommendations and recovered fully. The panel makes no finding on the actual diagnosis, but is satisfied that the worker injured his hand and became disabled from his regular duties, while performing his work duties on June 8, 2016 and that his claim is acceptable.
The worker's appeal is approved.
Panel Members
A. Scramstad, Presiding Officer
R. Hambley, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 5th day of April, 2017