Decision #134/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on August 25, 2004, at the employer's request. 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 June 2000, the claimant filed a claim with the Workers Compensation Board (WCB) for right wrist difficulties that she related to her employment activities as a clerk. The diagnosis rendered by the attending physician was "carpal tunnel syndrome and Dequervin's (sic) tendonitis."

Subsequent information was received from the claimant wherein she described her daily work duties of placing mail in boxes, computer work and lifting parcels mainly with her right hand. The claimant noted that she does not have diabetes and smoked 20 to 25 cigarettes per day. Extracurricular activities included curling. The claimant is 5 feet 7 inches and weighs 165 pounds.

In a letter dated July 27, 2000, the employer's representative provided the WCB with additional information concerning the claimant's work history and the amount of time she spent at each activity. The employer stated there was no specific accident arising out of or in the course of the claimant's employment and that there was no requirement for awkward postures or forceful extensions of the hands or wrists in the performance of her job duties. The employer's view on the claim was "…factors other than work activities, on a balance of probabilities, are the dominant cause of her hand problems."

Following consultation with the WCB's healthcare branch, the claimant was advised on March 21, 2001, that her claim for compensation had been denied. This decision was reached based on the medical advisor's opinion that the diagnosis of CTS had not been confirmed as nerve conduction studies had not been performed. The medical advisor also stated it was difficult to relate the claimant's job duties with the diagnosis.

On July 30, 2001, a neurologist advised the family physician that the claimant had no definite clinical or electrophysiological evidence of CTS. He suspected that her ongoing symptoms were likely tendon based and may be part of an over use syndrome as well as being work related. Based on this opinion and after consulting with the WCB's healthcare branch on June 18, 2002, the claimant was advised on July 9, 2002 that her claim was acceptable as it was probable that the performance of her job duties led to the development of the diagnosed condition. In February 2003, the employer's representative disagreed with the acceptance of the claim and the case was listed with Review Office.

On April 2, 2004, Review Office considered the employer's appeal along with a submission received from the claimant's union representative dated March 1, 2004. Review Office noted the advice of a WCB orthopaedic consultant who confirmed for Review Office that the diagnosis of CTS had never been demonstrated, either by clinical evidence or by nerve conduction studies. The consultant stated that the most probable diagnosis was tendonitis of the wrist tendons and that the diagnosis was compatible with the claimant's work activities.

Review Office further noted that the union had gone to great lengths to show the incredible amount of sorting, etc., that the worker might be exposed to whereas the employer had countered this by down-playing the amount of repetitive work involved in her position. Review Office believed, however, that the claim was acceptable as a right wrist tendonitis claim and not as a CTS claim, as this particular diagnosis was never proven either by nerve conduction studies or by clinical examination. Review Office believed that the claimant had sustained what could be commonly called an overuse syndrome of her right wrist caused by the nature of her employment. Review Office found the claim to be acceptable as an "accident" under the Government Employees Compensation Act (GECA). On May 21, 2004, the employer's representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

The eligibility for compensation benefits by federal employees is governed by the GECA and the Government Employees Compensation Regulations (GECR) which are both administered by agreement in Manitoba by the WCB. In the GECA, an accident is defined as "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."

According to Section 4(1) of the GECA, compensation shall be payable to

(a) an employee who

(i) is caused personal injury by an accident arising out of and in the course of his employment, or

(ii) is disabled by reason of an industrial disease due to the nature of the employment.

The GECR provide that, "an employee who is disabled by reason of a disease that is not an industrial disease but is due to the nature of his employment and peculiar to or characteristic of the particular process, trade or occupation in which he is employed at the time of the disease was contracted ... is entitled to receive compensation at the same rate as he/she would be entitled to receive under the Government Employees Compensation Act if the disease were an industrial disease ...".

In 1993, the Board of Directors of the WCB instituted policy 44.05.10 in order to clarify and/or to expand the definition of accident contained in the GECA. This particular policy provides:

"The following principles will apply when interpreting GECA. The definition of 'accident' in the GECA will be given a broad interpretation. Therefore:

1. The phrases 'personal injury by an accident' will be interpreted to mean 'personal injury by accident'.

2. The interpretation of 'accident' will encompass both accidental cause and accidental result. That is, the injury itself may be considered the 'accident'.

3. The gradual onset of a personal injury, including an injury resulting from a gradual process or repetitive injurious motion, will be considered an 'accident'."

The claimant testified at the hearing and described in great length and details the job duties that she was required to perform as part of her job description. We accept the worker's evidence that her job duties were in fact repetitive. We further find that the job duties were sufficiently repetitive enough to have, on a balance of probabilities, caused the claimant's right wrist tendonitis. In this regard, we attached significant weight to the following body of evidence:
  • July 30, 2001 letter from the treating neurologist to the attending physician - "At the present time she has no definite clinical or electrophysiologic evidence of a carpal tunnel syndrome. I suspect her ongoing symptoms are likely tendon based and may be part of an overuse syndrome."

  • June 18, 2002 in a memorandum to file, when asked to provide a probable diagnosis for the claimant's condition, a WCB medical advisor responded by saying, "Repetitive Strain Injury. Muscular strain would be primary Dx [diagnosis]."

  • March 26, 2004 memorandum to file. Review Officer records the following comments, "Case discussed with Dr. ( WCB medical advisor). We agree work duties probably caused a tendonitis, but there is no established CTS [carpal tunnel syndrome] diagnosis."
We find the claim is acceptable. There is sufficient evidence to establish that an accident, as defined under the GECA, the GECR and/or WCB policy 44.05.10, did in fact occur on or about June 26, 2000, as asserted. Accordingly, the employer's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 6th day of October, 2004

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