Decision #60/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on March 11, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on the same day.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
In February 2002, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report left forearm, wrist and finger difficulties that he attributed to using a mouse and keyboard at work.The employer's report of injury for this claim indicated that the claimant came to work on February 21, 2002 and reported problems with his hand. There was no specific accident at work or at home that precipitated the injury.
On March 4, 2002, the claimant advised his adjudicator that he had worked as a customer service representative since March/April 2001. His work duties entailed taking 25-60 or more phone calls a day, entering information and web searching. He also did data entry and mouse work on his computer. The claimant was right hand dominant at one time but he lost his arm in a 1997 accident. About two years ago he noticed soreness to his thumb, index and middle finger. The claimant denied any systemic disease or prior injury. The claimant reported that he quit smoking about six years ago and that he did not drink caffeinated beverages. He underwent a left carpal tunnel syndrome (CTS) release in 1995 when he was driving a truck and farming.
Initial medical information revealed that the claimant underwent neurodiagnostic testing on June 5, 2001. Patient history revealed that the claimant sustained a traumatic right upper extremity amputation in 1997 and that he had a left CTS release in 1995. Presently, the claimant was experiencing numbness and tingling of his left hand with use provocation that escalated over the past 1 ½ years. Neither sensory or motor criteria for CTS was found in the left upper extremity.
On March 19, 2002, the claimant underwent further neurodiagnostic studies. The tests revealed that the claimant demonstrated evidence of left CTS.
In a letter to the family physician dated April 22, 2002, a treating hand specialist reported that the claimant presented with symptoms of left median nerve compression for over a year which gradually worsened so that he could not work on his computer. Examination revealed evidence of mild left CTS with a positive Phalen's test at 16 seconds. The thenar muscles had good power. The testing was strongly positive for thoracic outlet syndrome which was postural in nature.
On April 19, 2003, a WCB medical advisor reviewed the case. He agreed with the statement that the claimant's work activities did not contribute to the development of his CTS condition given the absence of any forceful repetitive activities. This decision was relayed to the claimant on April 19, 2002. On May 13, 2002, the claimant appealed this decision to Review Office.
On June 10, 2002, Review Office confirmed that the claim was not acceptable. Review Office referred to several reports on file which supported its opinion that the claimant's symptoms suggestive of CTS predated his employment activities as a customer service representative. Review Office was also of the view that while the claimant's symptoms were produced by the activities that he engaged in, his CTS condition could not reasonably be caused by his work duties. Review Office also was unable to establish that the claimant's diagnosed thoracic outlet syndrome was work related.
On December 23, 2002 and January 7, 2003, a worker advisor, acting on behalf of the claimant, requested the convening of a Medical Review Panel (MRP) based on reports prepared by the claimant's attending physician dated November 18, 2002 and the treating hand specialist dated December 17, 2002. The worker advisor contended that these reports supported a cause and effect relationship between the claimant's CTS condition and his workplace duties.
In a further submission to Review Office dated January 23, 2003, the worker advisor submitted a further report by the claimant's attending physician dated January 21, 2003. The worker advisor believed this report clarified that the claimant's service work duties were causative for the development of his CTS condition. On February 4, 2003, Review Office responded by stating that after reviewing the report, it was still of the opinion that the claimant's work duties as a customer service representative would not be causative of the development of CTS.
On February 10, 2003, primary adjudication granted the worker advisor's request to convene an MRP. An MRP later took place on July 11, 2003 and on September 23, 2003 and the final MRP report dated October 15, 2003 was forwarded to all interested parties.
On October 23, 2003, a WCB supervisor wrote to the claimant and to all interested parties and advised that, after reviewing all information, it was the WCB's opinion that the claimant's condition was unrelated to the duties of a customer service representative. The supervisor stated, "Our interpretation of the Medical Review Panel findings is that the cause of your condition is related to a pre-existing condition. In order to consider policy #44.10.20.10 for a Pre-Existing Condition there must be both a compensable injury and a pre-existing condition. As it is our opinion there was no compensable injury, policy 44.10.20.10 is not applicable. As such, we are unable to accept responsibility for your claim."
On October 31, 2003, the worker advisor appealed Review Office's decision of June 10, 2002 and requested an oral hearing. On March 11, 2004, an oral hearing took place to consider the issue under appeal.
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
(a) A wilful and intentional act that is not the act of the worker,
(b) any
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease
and as a result of which a worker is injured.”
As the background notes indicate, the claimant was booked for a neurolysis on a day surgery basis. This procedure was carried out on March 25th, 2003. The treating hand surgeon provided, in part, the following report to the WCB in a letter dated May 1st, 2003:
“The old scar was reopened and extended into the distal forearm. The median nerve was identified proximally and the nerve was traced through to the carpal tunnel. At this area, there was an approximately 3 cm segment of very ischemic-looking nerve which was scarred and white in the region of the previous carpal tunnel. The compression was likely in the form of scarring as no obvious bands or reformation of the retinaculum was identified. The scar tissue was freed up from the nerve and from the adjacent soft tissues. Distal to the area of this scar compression, the nerve was again normal in appearance.”
The WCB referred the claimant’s case to a Medical Review Panel (MRP), which convened on October 15th, 2003. Given the nature of the worker’s claim, it was determined that the appropriate discipline, from which the panelists of the MRP would be chosen, was Neurology. In arriving at our ultimate decision, we attached considerable weight to the responses expressed to several questions that were posed to the MRP.
Q. Did the claimant have left carpal tunnel syndrome, prior to undergoing surgery in March 2003?
R. The Panellists agree that the criteria for the diagnosis of carpal tunnel syndrome were not confirmed prior to undergoing surgery in March 2003. The complaints at that time were consistent with a left median neuropathy. At surgery, no residual flexor retinaculum was present ruling out pressure of this structure on the median nerve which is necessary to make the diagnosis of carpal tunnel syndrome.
The Panellists agree that the claimant has a median neuropathy at the left wrist which is probably related to his earlier operation in 1995 and also the March 28, 2003 operation.
The compressive phenomenon of the median nerve appears to be related to scar formation since there is no evidence that the flexor retinaculum is now causing pressure to the median nerve.
Q. Was the claimants (sic) carpal tunnel syndrome caused by his employment as a telephone customer service representative?
A. The Panellists agree that Mr. [the claimant’s] symptoms are due to a median nerve neuropathy probably related to his surgery or the prior carpal tunnel injury. The condition is aggravated by repetitive movements of the wrist.
Q. Did the claimant have pre-existing carpal tunnel syndrome, prior to commencing employment in March 2001?
A. The Panellists agree that problem prior to March 2001 was due to scarring of the median nerve and not due to pressure from the flexor retinaculum as in carpal tunnel syndrome.
Q. If yes, was the carpal tunnel syndrome unaffected, temporarily aggravated, or permanently enhanced by the claimant’s employment?
A. As previously stated, the condition was a median nerve neuropathy which was aggravated by the repetitive nature of the claimant’s employment.
Q. Has the claimant’s carpal tunnel syndrome now resolved?
A. The median neuropathy has not resolved.
Q. If the Panel has any additional findings, comments or opinions relevant to the subject matter, please include them in the report.
A. The Panellists do agree that some of Mr. [the claimant’s] complaints are due to repetitive strain at work on his median neuropathy.
The Panellists do not believe that the neuropathy was caused by Mr. [the claimant’s] activities at work.
The preponderance of evidence confirms that the worker sustained an accident which arose out of and in the course of his employment and which resulted in an injury. The injury was eventually diagnosed as an aggravation of a median nerve neuropathy. We accept the MRP’s conclusions that this condition was not caused by the claimant’s activities at work and that this condition was aggravated by the repetitive nature of the claimant’s employment.
Inasmuch as we have determined that there was an accident as defined by the Act, we therefore find the worker’s claim is acceptable. Accordingly, the claimant’s appeal is hereby allowed.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 29th day of April, 2004