Decision #14/02 - Type: Workers Compensation

Preamble

A non-oral file review was held on December 20, 2001, at the request of the claimant.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Decision: Unanimous

Background

In September 1998 the claimant filed a claim with the Workers Compensation Board (WCB) for right hand difficulties, which she attributed to her work activities on September 21, 1998. On that date, the claimant was cutting pictures with a pair of scissors when she suddenly felt pain at the base of her right thumb along with tingling and numbness at her fingertips.

A Doctor's First Report dated October 19, 1998 revealed objective findings of right thenar atrophy and positive Tinel's and Phalen's tests. The diagnosis rendered was carpal tunnel syndrome (CTS) on the right. Subsequent EMG studies dated November 17, 1998 confirmed a diagnosis of "severe bilateral carpal tunnel syndrome, right worse than left."

On December 15, 1998, a sworn statement was taken from the claimant which described in detail her daily work activities. The claimant starting working with the accident employer on September 10, 1998 and had no prior difficulties with her hands or right thumb prior to that date. The claimant was of the view that her problems arose from using scissors at work and the repetitive nature of her job duties.

Following consultation with a WCB medical advisor on December 29, 1998 and January 15, 1999, primary adjudication denied the claim based on Sections 4(1) and 1(1) of the Workers Compensation Act (the Act). Primary adjudication stated, in part, "while the development of carpal tunnel syndrome is consistent with [the claimant's] work activities, given the short duration of [the claimant's] employment, the medical evidence would suggest that the carpal tunnel syndrome was present prior to [the claimant's] employment with the company."

On June 29, 2000 a worker advisor appealed the adjudicator's decision to deny the claim and submitted a June 23, 2000 report from the attending physician for consideration. The worker advisor noted the following opinions that were expressed by the attending physician:
  • the claimant had bilateral atrophy of the thenar muscles and weakness of both hands which resulted in the persistence of severe CTS;

  • after going through the claimant's chart back to July of 1992, there was no evidence to show that the claimant complained about her hands or wrists prior to September of 1998. The first time that the claimant complained about her right thumb was on September 21, 1998. The attending physician felt that the claimant was pre-disposed to the development of CTS, which was triggered by her workplace activities.

  • the claimant had been examined by two neurologists less than a year prior to September 1998 and neurologically, they did not find any evidence of CTS at that time.
At primary adjudication's request, a WCB medical advisor reviewed the case on July 26, 2000 in light of the above report. The medical advisor commented that there was nothing new in the letter regarding a cause and effect relationship. He concurred with the comments made by the previous WCB medical advisor. On July 31, 2000 primary adjudication confirmed that no change would be made to its earlier decision and that the case would be referred to Review Office for further consideration.

Prior to considering the appeal, Review Office sought the medical opinion of a WCB orthopaedic consultant in August 2000. The orthopaedic consultant was of the opinion that the diagnosis was moderate bilateral CTS of a longstanding nature and that there was no relationship between the claimant's employment activities and her bilateral CTS. The consultant felt that the claimant had pre-existing CTS prior to entering her employment and that the condition would have made it difficult for her to do the work. The atrophy of the muscles in the right hand was indicative of a longstanding problem. On August 18, 2000, Review Office determined that the claimant's employment activities did not cause her CTS and that the claim was not acceptable.

On October 4, 2000, the worker advisor requested that a Medical Review Panel (MRP) be convened under Section 67(4) of the Workers Compensation Act (the Act) due to a difference in medical opinion between the WCB's doctors and the claimant's attending physician. On November 9, 2000 the worker advisor's request for an MRP was granted.

An MRP took place on February 28, 2001. In brief, the MRP was of the opinion that the claimant's CTS condition pre-existed her employment in September of 1998 and that her complaints on September 21, 1998 were not consistent with the diagnosis of CTS. The pre-existing condition was not considered to have been aggravated or enhanced by her employment.

After a review of the MRP's findings, primary adjudication advised the claimant on May 16, 2001 that no change would be made to its original decision of January 1999 or to Review Office's decision of August 18, 2000. On July 30, 2001, the claimant appealed the decision denying her claim and the case was referred to Review Office for further consideration.

On September 14, 2001, Review Office confirmed the claim for compensation was not acceptable as there was no evidence the worker sustained personal injury by reason of an accident arising out of and in the course of her employment in September and October 1998. On October 27, 2001 the claimant appealed Review Office's decision and a non-oral file review was held on December 20, 2001.

Reasons

Section 4(1) of The Workers Compensation Act (the "Act") provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.
    "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."
In keeping with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of section 1(1) of the Act. An accident is defined as,
    "a chance event occasioned by a physical or natural cause; and includes
    1. a wilful and intentional act that is not the act of the worker,
    2. any
      1. event arising out of and in the course of, employment, or
      2. thing that is done and the doing of which arises out of, and in the course of, employment, and
    3. an occupation disease
    and as a result of which a worker is injured."
As the background notes indicate, the worker seeks claim acceptance for her bilateral carpal tunnel syndrome, which she attributes to her employment duties. These duties included cutting individual photographs with scissors, affixing adhesive-backed photographs to envelopes and sorting/filing envelopes.

On November 17th, 1998, the claimant underwent nerve conduction studies, which revealed bilateral carpal tunnel syndrome, right worse than left. It should be noted three WCB medical advisors shared the same opinion that the claimant's carpal tunnel syndrome must have pre-existed her brief period of employment. They based their opinion on the following body of evidence: the disease was bilateral; the median nerve conduction delays were severe; hypothenar atrophy was present on the initial medical assessment; and the claimant had only been employed and performing her job duties for less than two weeks when she reported the onset of her symptoms. The treating physician on the other hand was steadfast in his belief that the claimant's carpal tunnel syndrome had been caused by her work duties.

In light of this difference of opinion, Rehabilitation and Compensation Services requested that a Medical Review Panel (MRP) be convened pursuant to section 67(4) of the Act. The MRP examined the claimant on February 18th, 2001 and we attached considerable weight to several of their conclusions.
    Q. Was the worker's condition in October 1998 causally related to her employment activities at the time?

    A. The Panellists can find no objective evidence that the worker's condition in October 1998 was causally related to her employment activities at the time. Her activities using the scissors appear to have been an aggravating factor causing joint pain.

    Q. Did the worker have a pre-existing condition affecting her wrist(s) prior to commencing employment in September 1998?

    A. The Panellists agree that nerve conduction studies support the presence of bilateral carpal tunnel syndrome, would have pre-existed her commencement of employment in September 1998. The Panellists agree that Mrs. [the claimant's] complaints on September 21, 1998 were not consistent with those usually associated with carpal tunnel syndrome.

    Q. If the worker had a pre-existing condition affecting her wrists, was the pre-existing condition (temporarily) aggravated or (permanently) enhanced as a result of her employment activities?

    A. The Panellists do not believe that the pre-existing condition, carpal tunnel syndrome, was aggravated or enhanced as a result of her employment activities.
We have thoroughly reviewed and considered all of the evidence on the file and find that the claimant did not, on a balance of probabilities, sustain an accident arising out of and in the course of her employment as defined by the Act. Accordingly, the worker's claim is not acceptable and her appeal is hereby dismissed.

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 25th day of January, 2002

Back