Decision #26/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 20, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on November 20, 2003 and again on January 29, 2004.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Decision: Unanimous

Background

On July 16, 2002, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report left wrist difficulties that she related to the nature of her employment activities as a customer service representative. The claimant described her difficulties as follows:
"I type all day long at my job and this has caused carpal tunnel syndrome. It started in September of 1995 with my right wrist - I only had a mild case of CTS in 1995. My job has not changed and now I need surgery on my left wrist as it has become severe."
In order to adjudicate the claim, a WCB adjudicator contacted the claimant on July 30, 2002 to gather additional information concerning her work history with the employer and details with respect to the onset of her left hand symptoms.

Medical information consisted of reports from the treating plastic surgeon who diagnosed the claimant with left wrist CTS. EMG results were also obtained and theyrevealed a left median focal neuropathy at the wrist of a mild degree. The case was then referred to a WCB medical advisor who was asked to comment on whether or not it was probable that the claimant's left CTS was related to the performance of her job duties or was it due to non-work related factors. The medical advisor's response to this query is dated December 16, 2002.

In a decision dated December 18, 2002, primary adjudication advised the claimant that it had been unable to establish that she had suffered a personal injury due to an accident arising "out of and in the course of" her employment. It was the opinion of primary adjudication that the claimant had not been exposed to significant work related factors in the development of her CTS condition.

On May 21, 2003, the claimant's union representative wrote to Review Office indicating that the claimant had a previous WCB claim for right CTS and that the claim had been accepted as being work related. Since the right CTS claim was deemed acceptable by the WCB, the union representative saw no rational reason to deny benefits for the claimant's left CTS condition.

The case was considered by Review Office on July 8, 2003 based on the union representative's appeal of May 21, 2003 as well an appeal submission from the employer's representative dated June 16, 2003, who opposed any amendment to the adjudicative decision of December 18, 2002.

Review Office ultimately determined the claim for compensation was not acceptable. Review Office noted that it would not automatically follow that the worker's claim for left CTS would be accepted simply on the basis that the WCB accepted her previous claim for right CTS. Review Office indicated that it was well documented in medical literature that CTS can develop from work related as well as non-work related risk factors. Reference was made to the opinion expressed by the WCB medical advisor who felt that working at a computer would not cause CTS to develop. A similar opinion was noted by Review Office in the Mayo Clinic study of June 11, 2001. Review Office concluded that the claimant's left wrist CTS condition was not caused by her employment duties as either a receptionist or a customer service representative. On September 29, 2003 the claimant's union representative appealed Review Office's decision and an oral hearing was arranged.

Following the hearing and after discussion of the case, the Panel requested additional information prior to discussing the case further. Specifically, the Panel requested a copy of the July 21, 2003 operative report pertaining to the claimant's left carpal tunnel release surgery.

On January 14, 2004, all parties were provided with a copy of the operative report dated July 21, 2003 and were asked to provide comment. On January 29, 2004, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

The claimant in this case has developed a bilateral carpal tunnel syndrome (CTS), first on the right, and later on the left side. An earlier 1995 claim for her right CTS condition had been accepted by the Workers Compensation Board (WCB) as having arisen out of her job duties as a call center representative with the employer. The acceptance of the right CTS claim had been established by an earlier Appeal Commission decision (70/98).

In 2002, the claimant filed a claim in respect of her left CTS condition, attributing the left hand condition to the same job and the same job conditions as her right hand claim. Her claim has been denied at the adjudicative and review levels of the WCB, and she has appealed those decisions to this panel.

Sections 1(1) and 4(1) of the Workers Compensation Act set out the circumstances under which claims for injuries can be accepted by the Board, and state that the worker must have suffered an accident that arose out of and in the course of his or her employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.

In order for this worker's claim to be acceptable, we would have to find that the claimant's left CTS condition is causally related to her employment. We have carefully reviewed the evidence available in the file and presented at the hearing, and have concluded on a balance of probabilities that the claimant's job duties would not have resulted in the development of her left CTS condition. In reaching this conclusion, we have placed particular weight on the following evidence.

The claimant's job duties involved answering telephone calls with a headset at a call centre to deal with general inquiries on a variety of municipal services. While on the telephone, she uses her computer to bring up information to record the call and to ensure that the appropriate follow-up actions are taken by the responsible department. The claimant handles 90-105 calls per day. Each call averages 3-5 minutes in length.

The claimant uses up to six computer programs which are accessed via a mouse on her right side. The claimant's evidence is that she opens up the appropriate programs while she interviews the caller. The typing (with both hands) occurs when she types in the caller's address or other area addresses into data fields within the programs, and when she later types a brief computerized report. From the evidence, there are short one-line bursts of typing, for the most part, which are broken up by the ongoing telephone conversation with the customer.

The advocate for the claimant argues that if the right CTS condition had been accepted by the WCB, then this is a compelling argument that the left CTS condition would also be causally related to the claimant's job duties. However, our review of the evidence points to different factors being at play between the current claim and the right CTS claim.
  • The claimant's right hand complaints and deterioration resulted in surgery in September 1997. While she did note left hand complaints in 1995, her evidence is that her symptoms were mild and that there was no change in her condition until her symptoms increased in late 2001.

  • The claimant had been performing the same job duties over a number of years, and there was no material change in her job duties in 2001, when her left wrist became symptomatic.

  • The keyboarding and mousing that the claimant performs involves short bursts of typing with frequent short rest breaks, which would not under normal circumstances lead to the development of CTS. This position is noted by the WCB medical advisor in a December 12, 2002 memo, who notes that occupational health reports "fail to find or note any association with office clerical duties such as typing/computer work as being causative or producing CTS. Clmt's work duties do not involve use of wrist against force or altered pos'n [position] w [which] is recognized as being causative for CTS."

  • As to the earlier acceptance of the claimant's right CTS condition, we note that the operative reports on the right wrist are different from what was found in respect of the left wrist. We have reviewed the right CTS claim, and we note that the WCB medical advisors on that claim were also of the opinion that the job duties were not sufficient to lead to the development of CTS. However, the previous appeal panel found that the operative report from her right CTS surgery demonstrated a pre-existing medical condition which could have been aggravated by her job duties. This finding is consistent with the idea that a pre-existing condition can be aggravated by lower volumes of repetitive activity.

  • We note, though, that the operative report on the claimant's left CTS condition does not demonstrate a pre-existing condition. This means that the type of reasoning used by the earlier appeal panel has no bearing on how we assess the claimant's left CTS condition. This leaves us, again, with consideration of her job duties and/or other known factors which led to the significant increase in symptoms in late 2001.

  • Both advocates also discussed another appeal panel decision (78/03) which dealt with another worker at the same workplace, in which a bilateral CTS condition had been accepted by the majority of the panel. With the proviso that we do consider each case -- and each claimant -- on its merits, we note in our review of that case, that the majority had found that there was a major increase in keyboarding workload and overtime at the time that claimant's symptoms had increased. In the case at hand, however, the claimant's evidence was that she did not experience a change in symptoms during that earlier period, nor had her job duties changed in any material way throughout 2001. What did change in that period was that the claimant had enrolled in a computer programming course in early 2001, which added 20 hours a week of computer activity over and above her work duties, over the course of that year. The claimant's evidence is that this work involved assignments and typing, some done at work, at school, and at home.
After a review of all the evidence on file and as presented in the hearing, and as well, the medical literature provided by the advocates, it is our finding, on a balance of probabilities, that the onset of the claimant's left CTS condition in late 2001was due to the claimant's significant non-work-related activities, rather than to her job duties. The evidence does not disclose any significant change in job duties at the workplace before or around the time that the condition arose bilaterally in the claimant's wrists. As well, the claimant's normal job duties as a customer services representative do not support a finding that there is the type of repetition or degree of flexion or keyboarding volumes in this particular job as performed by the claimant, to lead to the development of carpal tunnel syndrome.

We therefore conclude, on a balance of probabilities, that the claimant's development of her left carpal tunnel syndrome was not caused by the claimant's performance of her job duties, and that her medical condition did not arise out of and in the course of employment, as required by the Act. On this basis, we find that the claim is not acceptable, and would deny the claimant's appeal.

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 26th day of February, 2004

Back