Decision #19/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 9, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on January 9, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The claimant submitted a claim for bilateral carpal tunnel syndrome (CTS) to the Workers Compensation Board (WCB) on July 3, 2001 which she felt was caused by the repetitive motion of her job duties over the years. The claimant advised that her injury became very painful over the past six months. The Employer's Report of Injury noted that the claimant had CTS but it had no prior knowledge of a wrist injury.

In order to adjudicate the claim, a WCB adjudicator spoke with the claimant on March 23, 2001 to obtain additional information concerning her work history and the specific job duties that she performed for the employer. The adjudicator also spoke with several co-workers concerning their knowledge of the claim.

Nerve conduction studies performed on January 31, 2001 indicated that the median motor conductions were normal bilaterally and that there was mild slowing in the median sensory conductions across the wrist bilaterally, consistent with bilateral CTS. The treating neurologist felt that the claimant may have some tendonitis in the left thumb. He advised the claimant that this was likely work related and that she could claim through WCB.

On May 28, 2001, a WCB medical advisor provided the following opinion to primary adjudication:
"Having reviewed all of the material on file to date it would be difficult for me to say with certainty that employment was involved here. The claimant does have significant pre-existing and the natural savages of age and time may be at play. Also, one might question why symptoms appeared once the claimant was already in her supervisory position."
In a decision letter dated May 31, 2001, primary adjudication confirmed that it was unable to establish that the claimant had suffered a personal injury due to an accident arising 'out of and in the course of' employment. The adjudicator stated, in part, that the claimant's symptoms did not start until August 2000 long after she had begun working as an inspector in 1995. On March 22, 2002, a union representative appealed this decision to Review Office on behalf of the claimant and submitted a report prepared by the claimant's treating orthopaedic surgeon dated February 20, 2002. The orthopaedic surgeon presented argument that the claimant's CTS condition was as a result of her work activities.

On May 30, 2002, primary adjudication advised the union representative that the additional information had been reviewed and that a medical opinion had been obtained from a WCB medical advisor. Primary adjudication concluded there was insufficient evidence to suggest that the claimant suffered a personal injury due to an accident arising out of and in the course of her employment. The case was then referred to Review Office for consideration.

In a decision dated September 27, 2002, Review Office noted that it was apparent from clinical examination and nerve conduction studies that the claimant had bilateral CTS. The claimant attributed her condition to the performance of her daily work duties since 1995.

After taking into consideration the nature of the claimant's employment activities, Review Office was of the view that such activities were repetitive in some respects but did not involve high repetitive force. Review Office mentioned the fact that the claimant presented with a number of commonly known risk factors that may have contributed to the development of CTS such as age, gender, obesity, hypothyroidism, a smoker, fibromyalgia and osteoarthritis. A WCB physiatrist reported that the claimant's age was a factor against the claimant's work as being the cause for the development of her CTS.

After considering the above evidence and the opinions expressed by WCB healthcare consultants that the claimant's CTS condition was not work related, Review Office was unable to conclude that the claimant sustained personal injury by accident arising out of and in the course of her employment. On October 21, 2002, the union representative appealed Review Office's decision and an oral hearing was convened.

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 occupational disease
and as a result of which a worker is injured."

On January 31st, 2001, the claimant underwent a series of nerve conduction studies. The treating neurologist recorded the following comments in his examination report to the attending physician. "She may, as well, have some tendinitis, especially in that left thumb and I will leave management of that to yourself. She is aware that this likely is work-related and she could claim through Workers' Comp which she will consider."

The treating physician provided a report to the WCB in which he opined that "repetitive movement of the wrist in awkward positions including hyperextension, hyperflexion and holding the cards fairly stiff in the hand could result in …stenosing tenosynovitis."

The possibility of the claimant's tenosynovitis being work related is further supported by a WCB medical advisor, who stated in a memorandum dated May 22nd, 2002 as follows: "There is a component of her wrist complaints that's likely work related specifically the De Quervain's tenosynovitis."

After having assessed the claimant's job duties that were described on the file as well as having observed a demonstration of her card handling and shuffling responsibilities, we find that the claimant's job duties were consistent with her developing De Quervain's tenosynovitis of the left thumb. However, the claimant's mild bilateral carpal tunnel syndrome did not evolve, in our view, as a result of her job duties. Her bilateral carpal tunnel syndrome is, on a balance of probabilities, more closely associated with non-work related factors such as age, gender, smoking, osteoarthritis, hypothyroidism and rheumatoid arthritis.

We find that the claimant did sustain an accident arising out of and in the course of her employment, which resulted in personal injury. Accordingly, the claim is acceptable and the claimant's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 13th day of February, 2003

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