The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 25, 2004, at the request of an advocate, 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 not acceptable.

Decision: Unanimous

Background

In February 2003, the worker filed a claim with the Workers Compensation Board (WCB) for difficulties that she was experiencing with both hands which she related to 19 years of repetitious work which included filing, key boarding, mouse clicking and draft writing. Subsequent medical information confirmed the worker's diagnosis as bilateral severe carpal tunnel syndrome (CTS).

In a telephone conversation with a WCB adjudicator on February 6, 2003, the worker advised that her job duties were varied throughout the day and that they consisted of typing, filing, writing, photocopying, etc. The desks and chairs where she worked at now were considered to be ergonomic but when she worked in the blacksmith shop, she sat at an old desk with an old steno chair. The worker stated she had no problems with thyroid, diabetes or high blood pressure and was not on any medications. She was a non-smoker and was 5'5" tall and weighed 180 to 185 lbs.

A submission was received from the employer's claims agent dated February 19, 2003.

The employer outlined the worker's job history since 1985 and provided details regarding her daily job activities.

On March 18, 2003, a WCB medical advisor reviewed the file information and advised primary adjudication that, in his opinion, the clinical status of the claimant's condition was due to work related activities.

In a WCB decision letter dated March 19, 2003, the worker was informed that the WCB was unable to accept her claim as it was unable to establish that she had been exposed to significant work related factors in the development of her CTS condition.

On April 16, 2003, the worker disagreed with the WCB's decision of March 19, 2003. The worker noted that during the 19 years of her employment, she had worked at a number of positions which required high force repetitive activity involving motion with her wrists, fingers and hands for 8 hours per day/40 hours per week. In support of her position that her bilateral CTS condition was work related, the worker submitted a report from her treating physician dated April 24, 2003 for consideration.

In a decision dated May 16, 2003, Review Office confirmed that the claim was not acceptable. Review Office did not agree with the worker that there was high force involved in her daily activities and was of the view that keyboarding and general computer usage were not causative in the development of CTS. Review Office was rather of the opinion that the claimant's CTS condition was more systemic in nature or with an unknown etiology.

In April 2004, a union representative, acting on behalf of the worker, appealed Review Office's decision and later provided the Appeal Commission with further medical information for consideration. On June 25, 2004, an oral hearing was convened.

Following the hearing and after discussion of the case, the Appeal Panel asked the employer's advocate to confirm whether or not it would be possible to attend the work site and to view the job duties that the claimant performed between October 2001 and October 2002 while working with the contract company. In response to the Panel's request, the employer's advocate stated the following on July 15, 2004, "…although the contract company is not in any way opposed to a visit, regrettably, they believe it would be of little benefit in this case. Since the time Ms. [the claimant] worked there, the work site has changed completely. The location has changed. The job duties are different, as is the workstation with a different chair and desk."

On July 21, 2004 and August 17, 2004, the Panel met further to discuss the case and considered a letter from the claimant's union representative dated July 20, 2004.

Reasons

At the hearing both the worker and employer were represented by advocates. We found the parties' submissions were very helpful.

The issue before us was whether or not the worker's claim is acceptable. In other words, did the worker's employment duties cause her bilateral CTS.

The worker argued that her bilateral CTS was caused by her employment. The worker provided information on her current duties and on the duties she was performing when the symptoms emerged. Her union representative noted that the worker was employed in a clerical capacity for the past 19 years. The union representative also reviewed the medical information which suggested a causal relationship between the worker's employment and her CTS.

The employer advocate noted the variety of duties performed by the worker and submitted that the duties are not known to cause CTS. She also noted that the worker had several risk factors known to be related to CTS. The employer advocate suggested that the bilateral nature of the worker's condition was inconsistent with occupational CTS.

For the worker's appeal to succeed, we must find that the worker's bilateral CTS arose out of and in the course of her employment. We were not able to make that determination.

At the hearing, the worker provided a detailed description of her employment duties. She worked for 19 years in a clerical capacity for her employer. She described the various positions she had occupied over this period. We found that her duties over the 19 year period varied significantly and, in our opinion, did not include the type or volume of activities which cause CTS. Accordingly, we do not find that the worker's condition is the result of 19 years of clerical employment with the employer.

In coming to our decision, we also considered the duties the worker was performing when her symptoms emerged. She provided a detailed description of these duties. The symptoms began when the worker was employed in a blacksmith shop as a customer service representative. She described this as a very busy work environment where there was always much to do. Her main duties at this position included:

"So what happens is we get an invoice of the product with the tags. I pull the tags out of the drawer, of course, and then my boss brings me seventy packages loose, they're about four pages apiece.

So I thumb through them and I put them together.

I have to write everything that's on the front of the page onto these tags, because they go onto the product that is loaded, once the product is made the tags are ripped off and put on there.

The packages are then brought back to me.

First I have to enter everything into the data that's on these pages, then the packages are brought back to me, I separate them."

But at the same time the package is built I have to run a drawing. This is the smallest one. We have a cardboard piece of paper that we just keep folding constantly to make a complete package." (Excerpt from the hearing transcript).

The worker also had to enter payroll information. This involved mouse clicking and use of different computer applications. As well she had to do filing where she had to "squish" the material into the cabinets.

We also considered the role played by her work station in the development of her condition. While working at the blacksmith shop the worker was assigned a workstation which she considered to be ergonomically incorrect. She asked for a different workstation but this request was denied. The occupation health specialist in a report dated October 14, 2003 provided the opinion that the cause of the worker's condition was her ergonomically poor computer set-up requiring sustained wrist flexion. The worker's family physician offered a different assessment of the impact of the workstation when asked whether it could have played a role in the worker's condition. She replied "Maybe, but minimally." Given the worker's description of her posture while working at the workstation, we find that the workstation was not a contributing factor to the worker's condition.

While we had considered visiting the worksite (blacksmith shop) to see the actual workstation and duties performed, we understand that recent changes made at the worksite render such a visit to be of no value. We are satisfied that the worker has provided a full description of the job duties and workstation design. We note that the employer's representative has not disagreed with the worker's description of her duties or the workstation in use at the blacksmith shop.

In arriving at our decision we have considered the extent to which the duties include actions which are known to cause CTS. We find that the worker's duties varied greatly throughout the day. There was also a lack of high volume repetitive movement and the use of force which are often associated with the development of CTS. The job was a busy job but not one involving the significant use of force and repetition.

At the hearing, the worker also described her current duties as a cost revenue management specialist, but we note that her CTS condition had already developed prior to her taking on these duties. Therefore, we find that her current duties are not relevant to the issue before us regarding the cause of her condition.

The union representative referred to medical reports which support the worker's claim. We have considered these reports and have concluded that the physicians did not have a clear understanding of the worker's duties. For example, the letter sent by the union representative to the family doctor and surgeon describe the worker's duties at the blacksmith shop and her duties at her current position. We have determined that the duties at the current position are not relevant because the worker's condition had emerged before this employment, and that we obtained a clearer understanding of the claimant's job duties than that provided to the physicians.

We are satisfied that the worker's CTS is not work related. We note the worker has at least four non-occupational risk factors as are noted in the employer's submission.

We also note that that the bilateral nature of the worker's CTS is not consistent with work related CTS. The duties described by the worker involved a much greater use of the right hand than the left, yet the condition arose more or less simultaneously in both wrists and was diagnosed as a severe bilateral CTS. We would expect that if work activities were the cause of her CTS, the condition of her right dominant hand would be more pronounced than her left hand.

After having considered all the evidence and particularly the worker's description of her duties at the time the symptoms emerged, we find on a balance of probabilities that the worker's bilateral CTS did not arise out of and in the course of her employment. The worker's appeal is accordingly denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of September, 2004