Decision #03/03 - Type: Workers Compensation

Preamble

A non-oral file review was held on November 29, 2002 at the employer's request.

Issue

Whether or not the accident employer has been properly identified.

Decision

The accident employer has been properly identified.

Decision: Unanimous

Background

In January 1998, the claimant filed a claim with the Workers Compensation Board (WCB) for bilateral carpal tunnel syndrome (CTS) in both hands and wrists.

In a letter attached with his application for benefits, the claimant stated that he was employed in the construction industry and that he worked out of the union hall for a variety of different companies. His symptoms first appeared in mid February 1997 while employed with the appellant employer. He thought he had a pinched nerve in his wrist. The claimant was laid off by the appellant employer on March 5, 1997 and started working with another company on March 6, 1997. After contacting several of the claimant's previous employers, the claim was accepted by the WCB and benefits were paid to the worker.

On June 15, 1998, the WCB wrote to the appellant employer and stated, in part, the following:
"Upon review of all information on file, it is noted that Mr. [the claimant] was in your employ when he began to suffer symptoms of carpal tunnel syndrome.

However, since carpal tunnel syndrome is a progressive condition, it is likely that the development of this condition started before his employment with your company commenced. As such, based on WCB policy, I am able to provide 50% cost relief to [the appellant employer's name] as the employer of record. This process will be initiated immediately and should be reflected on your firm experience statement in the near future."
In March 2002, the appellant employer appealed the above decision to Review Office. The appellant stated, in part, the following:

"….After reviewing claimants file who is now diagnosed with Raynaud's Phenomenon (which is mainly caused by an individual disease not an occupation injury, and vibratory tools which may or may not have been a factor) we have decided to deny any acceptance of this claim and have the appeal process brought into play…".

The employer believed that there were many inconsistencies with what the claimant was saying verses the reporting on file. There was no medical evidence to support that any injury or deteriorating hand symptoms happened back in the spring of 1997 or prior. The employer felt that another firm should take full responsibility for the claim.

On June 7, 2002, Review Office determined that the employer was not entitled to cost relief beyond the 50% already awarded. It was clear to Review Office, after reviewing evidence submitted by the employer, that the claimant was subjected to frequent use of his hands in positions of radial and ulnar deviation and that he was involved in a lot of grasping activities with his hands. Review Office was satisfied that such activities contributed to or caused the claimant's initial CTS to develop. Review Office looked into the aspect of apportioning costs in accordance with WCB Cost Relief policy and schedule. However, given the worker's length of time with this employer, Review Office believed that it would be detrimental to the employer to utilize this method as it would likely result in cost relief below the 50% that had already been awarded. Review Office confirmed that the appellant employer had appropriately been deemed to be the 'accident employer' and that it had been afforded the maximum amount of cost relief available under the board's policies.

Following receipt of an "Appeal of Claims Decision" form dated July 10, 2002, the Appeal Commission's Registrar contacted the employer on July 25, 2002 to inquire as to what the employer was hoping to achieve with its appeal. The employer advised the Registrar that the firm should not have had any involvement whatsoever on the file. There was no accident nor was any injury reported by the claimant during his employment with them. The employer acknowledged that the issue framed by Review Office was whether or not the accident employer was entitled to additional cost relief but what the company really wanted addressed was whether or not the employer should be responsible for the claim costs. Hence, it was agreed to by all parties that the issue under appeal would be framed as follows: "Whether or not the employer has been properly identified."

On November 29, 2002, a non-oral file review was held at the Appeal Commission, at which time the Panel considered all file information including submissions from previous employers dated July 30, 2002 and November 20, 2002.

Reasons

WCB policy 31.05.10 defines an accident employer as follows: "Accident Employer is generally the employer of the worker at the time of injury. For industrial disease or cumulative trauma claims long periods of exposure or activity are generally necessary before the disease/condition develops. The worker may no longer be employed with the employer where the exposure or activity occurred. In these cases the accident employer will be the last employer where the worker had exposure or performed the activity contributing to the disease or condition (Section 17(3))."

The evidence confirms that the claimant first began to experience problems with his hands and wrists in mid-February 1997 prior to his being laid off by his employer at the time. This condition continued to be symptomatic after the claimant started work with a different employer on March 6th, 1997 as well as with subsequent employers in that same calendar year. According to the medical records, his attending physician first treated the claimant on March 19th, 1997. Following the initial examination, the attending physician referred the claimant to a hand specialist for further treatment.

We find based on the weight of evidence that the accident employer has been properly identified. We are of the further view that the claimant's work related compensable condition began to develop as a consequence of several lengthy episodes of cumulative trauma while he was working for the accident employer. Accordingly, the applicant's 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 13th day of January, 2003

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