The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 12, 2001, at the request of the claimant and employer. The Panel discussed this appeal on April 17, 2001.

Issue

Claimant's Issue: Whether or not responsibility should be accepted for the worker's right ulnar neuropathy.

Employer's Issue: Whether or not the claim for Carpal Tunnel Syndrome is acceptable.

Decision

Claimant's Issue: That responsibility should be accepted for the worker's right ulnar neuropathy.

Employer's Issue: That the claim for Carpal Tunnel Syndrome is not acceptable.

Background

In September 1999, the claimant submitted a claim for compensation benefits in relation to right wrist, thumb, fingers and forearm difficulties which he attributed to the repetitive nature of his work activities on August 24, 1999.

In a statement signed by the claimant dated November 15, 1999, he indicated that he had been diagnosed with carpal tunnel syndrome of his right wrist/forearm and that his left hand was not affected. The claimant started having problems with his right hand on August 24, 1999 which he felt were caused from operating the joystick of a Mad Vac Machine between July 23, 1999 and September 7, 1999.

Medical documentation on file consisted of the following reports/letters:

• on September 3, 1999, a hand written note from the attending physician stated that the claimant had been under his care and was found to have early carpal tunnel syndrome of the right hand. The claimant required orthopedic wrist braces with double stays for both the right and left hands.
• Nerve conduction studies performed on October 20, 1999 were analyzed as follows: "1. Mild right carpal tunnel syndrome; 2. Moderately severe focal right ulnar neuropathy at the elbow involving the area of the ulnar groove.
• On November 27, 1999, a Workers Compensation Board (WCB) medical advisor reviewed the claim. He confirmed the diagnoses of ulnar neuropathy (moderately severe) involving the ulnar groove at the elbow and mild right carpal tunnel syndrome. The medical advisor was of the opinion that there was a relationship between the claimant's job duties and the diagnoses.
• On October 12, 1999, a neurologist wrote to the attending physician. The neurologist noted that the claimant was a diabetic and that he had normal nerve conduction studies a year ago. Examination of the claimant revealed no Tinel's sign or tenderness over the ulnar nerve. There were no motor or sensory abnormalities.

On January 24, 2000, the claimant was advised by the WCB that financial responsibility would be accepted for his right sided arm complaints (i.e. carpal tunnel syndrome and right sided ulnar neuropathy). It felt that the claimant presented with certain risk factors for the development of his condition, but that the nature of his job duties had been a major precipitating factor to the onset of his complaints.

In a letter dated March 27, 2000, the employer opposed the acceptance of the claim as one arising out of and in the course of employment. The employer acknowledged that the operation of the Mad Vac Machine entailed repetitive movements but "this, in and of itself, was not known to lead to the development of carpal tunnel syndrome." It was further noted that the claimant was diagnosed with diabetes in 1994 and this had been identified as one of the non-compensable risk factors known to contribute to the development of CTS. The employer commented that the claimant was taking a drug called Glyberide, which listed water retention as one of the its characteristics and that this could restrict the movements in the carpal tunnel. The employer also noted that the claimant had been prescribed double stays for both hands, which tended to imply that the claimant was experiencing problems with his opposite wrist, which had not been used in the operation of the job stick.

A report from a hand surgeon dated May 24, 2000, indicated that the claimant was on the waiting list for neurolysis of the right ulnar nerve. Financial responsibility for this procedure was accepted by the WCB.

An EMG report dated October 9, 1998 stated, in part, ".The rare fasciculation potentials recorded in this instance in only one muscle are not indicative of active neuropathic/neuropathic syndrome, and this conclusion is further discussed elsewhere."

On June 29, 2000, a submission was received from a union representative acting on behalf of the claimant. The union representative quoted the following opinions that were expressed by a neurologist in his report to the union representative of May 29, 2000:

"My diagnosis at this time is that this gentleman has a severe right ulnar neuropathy and a mild right carpal tunnel syndrome. This was suspected clinically and confirmed by electrodiagnostic studies."

"In answer to your question 1, in my opinion the ulnar neuropathy is more likely related to the work place duties of operating the Mad-Vac than to his diabetes or treatment. In answer to your second question there is definitely a variable result in different people who use similar machines. Not everyone develops carpal tunnel syndrome who uses these machines, but any form of repetitive twisting and forceful movement will make it more prone for someone to develop it. The fact that he was resting his right elbow on a flat surface also can expose the ulnar nerve as correctly indicated by Dr. [name] in his report to the Workers Compensation Board with an attached diagram."

The union representative commented that it was the neurologist's opinion that the claimant's injuries were due to the operation of the Mad Vac. He also stated that while there may not have been a requirement to grip the joystick firmly does not mean that the claimant did not grip it firmly. The claimant was learning how to operate the vehicle with some trepidation based on his unfamiliarity with the operation of the vehicle. The union representative also noted that the neurologist had provided an opinion with the respect to the drug called Glyburide. It was the neurologist's view that this drug did not cause any significant water retention and in his opinion, it did not contribute to the development of the claimant's CTS.

In a decision dated July 31, 2000, Review Office determined the following:

• that the claim met the requirements of Sections 4(1) and 1(1) of the Workers Compensation Act (the Act) and was therefore acceptable;
• that responsibility would be accepted for the claimant's mild right carpal tunnel syndrome. Review Office was satisfied that this condition was attributed to the work being performed by the claimant on August 24, 1999. Review Office noted that the nerve conduction study carried out approximately one year previously was normal with no indication of carpal tunnel syndrome.
• that no responsibility would be accepted for the claimant's right ulnar neuropathy. Review Office noted that during the time that the claimant was not working following his lay off in November 1999 until his recall in April 2000 there had been absolutely no improvement. The October 1999 nerve conduction studies found moderate severe ulnar neuropathy, which indicated to Review Office that this condition was coming on prior to August 24th as opposed to an immediate finding following August 24, 1999. Based on these factors, it concluded that the right ulnar neuropathy was not related to the claimant's work activities.

On August 24, 2000, primary adjudication advised the claimant that based on the Review Office's decision, the authorization for the proposed ulnar surgery was no longer the responsibility of the WCB. Primary adjudication also referred to a July 14, 2000, report from a second treating physician, who was of the view that the claimant should not undergo surgery as his condition was improving and that he should continue with conservative treatment.

On January 31, 2001, the union representative appealed Review Office's decision with respect to the non-acceptance of the claimant's right ulnar neuropathy. On March 7, 2001, the employer appealed Review Office's decision that the claimant's carpal tunnel syndrome was work related. On April 12, 2001, an oral hearing was held at the Appeal Commission to consider both appeals.

Reasons

Chairperson MacNeil and Commissioner Finkel:

As the background notes indicate, both the employer and the worker presented appealable issues before the Appeal Panel. With respect to the employer's issue, when arriving at our decision, we took into consideration the following factors:

• The claimant had been performing the allegedly causative work duties for only a 16-day period.
• The nerve conduction studies conducted on October 20th, 1999 revealed a very minor nerve signal interruption.
• The claimant presents with a medical history of diabetes mellitus, which condition is medically recognized as an etiologic factor or cause in the development of CTS.
• The nature of the claimant's work activities are not necessarily indicative of the usual types of activity associated with the development of CTS such as: regular tasks requiring the generation of high force by the hand; sustained tasks requiring awkward hand positions; regular use of hand-held vibrating tools; frequent or prolonged pressure over the wrist or base of the palm.
• The hand surgeon's recommendation to treat the mild CTS condition conservatively.
• Repeat nerve conduction studies undertaken one year later only disclosed a "slight improvement of the right median conduction across the carpal tunnel" despite the fact that the claimant had not been performing the offending work duties in the interim.

After having weighed all of the evidence, we find on a balance of probabilities that the worker's carpal tunnel syndrome (CTS) did not arise out of and in the course of his employment. Accordingly, the claim for carpal tunnel syndrome is not acceptable and the employer's appeal is hereby allowed.

In addition to the mild right CTS, the claimant was also diagnosed with "focal right ulnar neuropathy at the elbow involving the area of the ulnar groove". The previously referred to nerve conduction study of October 20th, 1999 established that this condition was considered to be "moderately severe". A WCB medical advisor was asked to comment on the possible causal relationship of this diagnosis to the claimant's job duties of July to September 1999. His response is contained in a memorandum to file dated November 27th, 1999, in which he states:

"Probably. The cubital tunnel which impacts on the ulnar nerve at the elbow often becomes progressively more taut as a result of repetitive rapid movements of the elbow and /or prolonged flexion. This +/- [more or less] continuous pressure (e.g. if the elbow was resting during this activity on the armrests in the vehicle/device) could account for this problem."

The hand surgeon, who examined the claimant on May 18th, 2000, concluded that there was evidence of a moderately severe right cubital tunnel syndrome with entrapment of the ulnar nerve at the elbow. Surgery to relieve this condition was carried out on January 24th, 2001. We attached considerable weight to the findings recorded by this surgeon in his letter of February 12, 2001 to the claimant's union representative:

"The nerve was explored at the elbow level and was found to be somewhat compressed within the tunnel itself and also compressed again at the level of Osborne's band immediately distal to the tunnel. In addition, the nerve was found to be fairly scarred throughout its length and accordingly all scar tissue was excised from around the nerve and a complete external neurolysis was carried out."

The foregoing evidence has confirmed to us that the claimant's right ulnar neuropathy was in all probability of a longstanding term and that it was not caused by the claimant's work duties. However, there is a strong likelihood that the work duties aggravated this pre-existing condition to the point where surgery then became necessary. We find, therefore, that responsibility should be accepted for the claimant's right ulnar neuropathy. The claimant's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of May, 2001

Commissioner's Dissent

The claimant provided evidence at the appeal hearing that demonstrated the repetitive and forceful movements using his right hand to operate this machine over a ten-hour shift. He recommended in September 1999 as part of a written evaluation to the employer that this machine should have controls on both the left and right side to prevent repetitive movements with the right hand. The employer’s representative confirmed at the hearing that these modifications have since been incorporated to this machine.

I also considered the following file medical evidence in reaching my conclusion.

• The treating physician in September 1999 noted symptoms of tender wrist, thumb, fingers and forearm due to repetitive motions of operating a joystick. The physician indicated this was compatible with early carpel tunnel syndrome of the right wrist.

•  A nerve conduction study in October 1999 demonstrates mild right carpel tunnel syndrome. A furthur nerve conduction study in November 2000 study stated “This electrophysiologic study is still indicative of mild carpel tunnel syndrome”.

• A plastic surgeon who specializes in hands on May 24, 2000 confirmed the claimant has relatively mild carpel tunnel syndrome in his right hand.

• A neurologist in May 2000 confirmed his diagnosis of October 1999 of mild carpel tunnel syndrome. He also commented on the claimant’s diabetes and its relationship to his diagnosis. He says, “It is known that diabetes may predispose individuals to focal peripheral neuropathies. Such is the case in this gentleman's case. However the fact that he was doing repetitive forceful work with his right hand definitely indicates that the repetitive trauma was the cause of his symptoms. He never complained of symptoms in his right hand prior to August 24^th. Thus, I would definitely consider a cause and effect relationship even though he had a predisposing factor of diabetes.”

In conclusion, it is the opinion of the minority that a causal relationship exists between the claimant’s job duties of operating the mad vac machine and his diagnosis of right carpel tunnel syndrome. I support the decision of initial adjudication and Review Office to accept the claim for Carpal Tunnel Syndrome.

M. Day, Commissioner