Decision #117/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on October 2, 2002, at the request of the claimant. The Panel discussed this appeal on October 2, 2002.

Issue

Whether or not the worker is entitled to wage loss benefits commencing November 8, 2000.

Decision

That the worker was entitled to wage loss benefits commencing November 8, 2000.

Decision: Unanimous

Background

On June 15, 2000, the claimant submitted a claim for workers compensation benefits indicating that he incurred right carpal tunnel syndrome (CTS) (and possibly left CTS) due to his employment activities as a camera operator in a microfilming area.

Information obtained from the accident employer dated June 5, 2000, indicated that the claimant primarily worked as a microfilm clerk in which his main duty was microfilming which involved taking a picture of every document by placing the document on the camera, taking the sheet and turning the document back over. It was thought that these duties were repetitive in nature and were done with both hands. The employer felt that this work did not expose the claimant’s wrist/hand to excessive forces, direct pressures, gripping or positioning at maximum angles.

In a CTS questionnaire completed on June 15, 2000, the claimant indicated that in his microfilming job, he was also required to remove staples from documents, counting/checking the documents which are in numerical order, stapling all documents back together and then placing them into binders.

File information revealed that the claimant had a part-time job with a janitorial company. In a letter dated August 10, 2000, the employer advised that the claimant’s job duties involved vacuuming, mopping hard wood floors, cleaning washrooms, dusting, wiping doors, cleaning baseboards, glasses and all the horizontal and vertical surfaces in the offices. The claimant also removed finger marks from the walls. The employer believed that the claimant was right handed and that his job duties were repetitive in nature.

Medical information revealed that the claimant was seen for treatment on May 10, 2000 at a hospital emergency facility and that he later underwent nerve conduction studies and was seen by his attending physician. It was confirmed that the claimant was diagnosed with right CTS.

In a letter dated August 31, 2000, the claimant was informed that the Workers Compensation Board (WCB) was accepting his claim for right CTS. The WCB also advised the claimant that in accordance with Section 22 of the Workers Compensation Act (the Act), all surgical procedures must be authorized by the WCB prior to them taking place.

On September 24, 2000, a physician specializing in sports medicine and rehabilitation diagnosed the claimant with bilateral CTS with the right hand being worse than the left. The specialist recommended that the claimant undergo surgical release of his transverse carpal ligaments. “As his right side is the most symptomatic, the right side should be released first but I also feel that with symptoms emerging on the left side that in the future he may also require a carpal tunnel release of the left hand as well.”

On October 11, 2000, the treating surgeon indicated that the claimant was booked for release of the median nerve on the right side. On October 26, 2000, a WCB medical advisor authorized the proposed right carpal tunnel release which later took place on November 8, 2000. Wage loss benefits were paid to the claimant commencing November 8, 2000.

In a follow up report dated January 8, 2001, the attending surgeon noted that the claimant was complaining of persistent pain and discomfort and mild swelling in the hand and right forearm. There was some thickening around the scar region. The specialist wondered whether the claimant was developing some degree of reflex sympathetic dystrophy (RSD). Suggestions were made for continued physiotherapy treatments and a return to work on a part-time basis to break the cycle of RSD.

File information revealed that the claimant returned to work with the accident employer but still complained of swelling and pain in his right hand. On January 18, 2001, the attending physician noted that the claimant incurred a “…relapse of CTS” and new EMG studies were arranged.

On February 23, 2001, a WCB medical advisor assessed the claimant. He noted that the claimant presented with vague myofascial discomfort in the neck region and in the right triceps area. “The claimant obviously had symptomatic carpal tunnel syndrome prior to his surgery. It is possible that he had some postoperative scarring and that continuous pressure at work was continuing to cause some discomfort and paraesthesia in the area. I did not find any serious pathology or muscle wasting.”

On March 23, 2001, NCS showed mild right carpal tunnel syndrome. A proper comparison could not be made as the previous result was not available.

The case was reviewed by a WCB medical advisor on May 1, 2001. The medical advisor commented that the NCS showed very mild right CTS, apparently improved from time of pre-surgery. The medical advisor indicated that the claimant, theoretically, was capable of all of his work duties. The primary limiting factor remained subjective complaints of pain which varied among individuals.

On May 4, 2001, primary adjudication advised the claimant that wage loss benefits would be paid to May 11, 2001 inclusive. In accordance with Section 39(2) of the Workers Compensation Act (the Act), it was felt that the claimant was capable of performing his pre-accident job duties given the weight of evidence.

On January 3, 2002, the claimant wrote to Review Office appealing the above decision and made reference to a December 19, 2001 report from an occupational health physician. The claimant noted that he was laid off by the accident employer in March 2001 on the basis that he should have been able to perform his regular duties but he was unable to do so because of the aggravation of his symptoms. The claimant commented that there was no provisions made to modify his duties (this was recommended by the WCB medical advisor in his examination notes of February 23, 2001).

In the December 19, 2001, report, the occupational health physician noted the following findings after reviewing the claimant’s history of work-related carpal tunnel syndrome:
  1. “He was not offered modified duties or reduced work tasks prior to being sent for carpal tunnel release surgery. This likely led to failures in the treatments first offered.
  2. The WCB medical advisor’s evaluation following surgery states that there was improvement in his nerve conduction symptoms and studies. However, this is, I think, factually incorrect.
  3. The highly repetitive turning the wrist thumbing through pages of material and microfilming is quite likely responsible for of (sic) his development of carpal tunnel syndrome. It was not appropriate for him to return to the very same duties following his surgery, especially given when his symptoms recurred as well as the abnormal nerve conduction tests on follow-up. The employer failed to offer him alternate duties and consequently he was laid off.”

On January 30, 2002, Review Office sought the advice of a WCB orthopaedic consultant as to whether or not the duties of a microfilmer could cause CTS. Review Office also asked the consultant to comment on whether or not the claimant’s symptoms would significantly improve if the CTS was work related and given that the claimant was away from the alleged causative factors for 8 months. In a response dated January 31, 2002, the consultant stated the following:

“In an established C.T.S. various activities both at work and outside of work can cause the symptoms to occur, i.e. that is not to say that these activities are necessarily causal for the condition.

Yes. Also if the condition did not improve post surgery and the electrical testing does not revert to normal over a period of time, then one has to question whether the decompression surgery was adequate.”

In a decision dated February 1, 2002, Review Office determined that the claimant’s wage loss benefits commencing on November 8, 2000 were not compensable based on the following factors:

  • after considering medical literature as to what work factors caused CTS, Review Office concluded that the claimant’s job duties were repetitive but were severely lacking in many of the criteria that one looked for in a CTS claim. “When assessing forceful hand motions, awkward positioning of the wrists, mechanical stress at the base of the palm and vibration, Review Office does not see it in this job description.”

  • Review Office noted that the claimant’s loss of earning capacity commenced on November 8, 2000 when surgery was performed. As it did not relate the surgery to the claimant’s work duties but rather to the underlying condition of CTS, Review Office deemed the loss of earning capacity was not work related.

  • Review Office felt that the claim was only compensable for any temporary acute aggravation of the CTS condition. After being removed from aggravating factors for a temporary period of time, Review Office felt there would have been an expectation that the symptoms would lighten. This did not occur as the claimant worked up until surgery. Review Office did not feel that the post-surgery wage loss claim was compensable. The surgery was to correct an underlying condition, not one that Review Office felt was caused by the claimant’s employment.

On July 10, 2002, the claimant appealed Review Office’s decision and requested that an oral hearing be arranged.

Reasons

This case involves a worker with carpal tunnel syndrome (CTS), for which he filed a compensation claim in June 2000. His claim was accepted in August and surgery performed on November 8, 2000. He continued to work up to the time of the operation, so wage loss benefits did not commence until that date.

In May 2001, the board determined that he was sufficiently recovered to resume his work duties. He was informed that wage loss benefits would cease on May 11, 2001.

He requested reconsideration of that decision by the Review Office, which found that the surgery of November 8, 2000 should never have been accepted in the first place, as there was no causal link between his work duties and his carpal tunnel syndrome. Accordingly, the Review Office determined that the worker was not entitled to wage loss benefits commencing November 8, 2000.

He appealed that decision to this Commission. For his appeal to be successful, the Panel would have to determine that his job duties were the cause of his carpal tunnel syndrome. We did make that determination. As noted below, however, we also qualified that finding.

In coming to our decision, we made a thorough review of the claim file, as well as holding an oral hearing at which we heard testimony from the claimant and representatives of his employer.

We took particular note of the following findings:
  • May 8, 2000 -- he attended the Emergency Room at Victoria Hospital, where the examining physician diagnosed right carpal tunnel syndrome.
  • June 15, 2000 -- a nerve conduction study found that he had mild right CTS.
  • September 19, 2000 -- an examination by a specialist in Sports Medicine and Rehabilitation confirmed that he had clinical evidence of right CTS and, to a lesser degree, evidence of CTS in his left hand and wrist. This doctor recommended surgical release of the right hand CTS.
  • October 10, 2000 -- a board medical advisor corroborated this diagnosis and also found that - on balance - there was a causal relationship between the diagnosis and the claimant's work tasks.
  • October 25, 2000 -- the board approved surgery.
  • January, February 2001 -- medical reports indicated that he was experiencing difficulties in his recovery from the surgery.
  • February 23, 2001 -- the claimant was called in for an examination by a board medical advisor, who, among other things, referred the claimant for further testing and recommended a worksite assessment; which never occurred.
  • March 23, 2001 -- the claimant's employment with the accident employer was terminated, as his position was determined to be
    redundant. (He had been employed in a series of term positions; his term was not renewed after this date.)
  • May 1, 2001 -- based on the further testing, the above-noted medical advisor determined that the claimant now showed very mild CTS in his right hand/wrist. It was his opinion that the worker was now capable of performing his regular duties.
On January 31, 2002, the board's orthopaedic consultant provided an opinion on this case, which was given considerable weight in the Review Office decision. We have come to a different finding in respect of this opinion. We are of the view that this opinion is neutral as far as helping determine the cause of the claimant's CTS. Although asked to do so, the consultant did not answer the question as to whether the duties of a microfilmer would cause CTS. He merely stated that there could be many causes for CTS.

In his testimony before the Panel, the claimant described the nature of his regular duties in his position as a microfilm operator. His duties were highly repetitive. Some duties placed equally repetitive stress on his hands and wrist. While Review Office found these stresses not to involve high force, we note that high repetitions of lesser force can also be a cause of carpal tunnel syndrome.

There is concern expressed, in the file record, that, if the CTS were linked to his employment, his symptoms should improve when he is removed from the workplace. In this case, the claimant worked right up to the time of his surgery; but then had a long recovery period. In this regard, we would note the following:
  • The orthopaedic consultant to the board wrote that this might lead one “to question whether the decompression surgery was adequate.”
  • The nerve conduction study conducted on March 23, 2001 indicated that his right hand CTS was mild. This led the board physician, who had examined him, to conclude that there was improvement shown.
  • This same physician expressed the opinion on May 1, 2001, that recovery may be delayed by the subjective element of pain. As already noted, he considered the claimant able to return to work by the beginning of May 2001.
This leads us to conclude that the delay in recovery is not determinative of the question as to a work-related causation.

We have come to the conclusion that - on a balance of probabilities - the claimant's carpal tunnel syndrome is causally linked to his employment as a microfilm operator. As such, he was entitled to wage loss benefits beyond November 8, 2000. From our review of the file, it would appear to us that his entitlement to wage loss benefits continues to May 11, 2001.

Accordingly, the appeal is allowed, as set out above.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 30th day of October, 2002

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