The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 24, 2005, at the request of a union representative, acting on behalf of the worker. 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

On June 2, 2004, the worker filed a claim with the Workers Compensation Board (WCB) for difficulties that she was experiencing with both wrists that she related to the repetitive nature of her job duties as a counter clerk. The worker described her work duties as follows:

"…I am typing all day long and customers come up and need to use the Interact (sic) machine and I have to punch in the amount so the customer receives a receipt. I am continuously typing on the keyboard all day long. I also use an SII machine which produces a receipt which has to be torn off and given to the customer…Every transaction has to always have my fingers moving whether I am typing on a keyboard or giving a receipt, pulling the receipts out of the SII machine and out of the Interact (sic) machine and using the Interact (sic) machine for payments received."

The worker indicated that several co-workers who did the same type of work as she did were also having problems with CTS (carpal tunnel syndrome). The worker noted that she had been having problems with both wrists for a couple of months, with her right wrist being worse than the left.

The worker underwent nerve conduction studies on July 6, 2004. The results of the test were outlined as follows: "This study suggests bilateral median mononeuropathy at or distal to the wrists (i.e. CTS), which appears to be severe on the right and moderate on the left side…"

On June 3, 2004, the worker advised the WCB that she had been doing the cashier job since February 2003 and that prior to that, she was a counter clerk which she started 6.5 years ago.

In a July 13, 2004 decision letter to the worker, Rehabilitation & Compensation Services determined that the claim for compensation was not acceptable. It was the adjudicator's opinion that "…although keyboarding and data entry in itself are repetitive, there is no evidence to support that your work duties include highly forceful repetitive activity involving motions of the wrist such as twisting, gripping, pulling, pinch pressure or repetitive wrist flexion/extension which would expose you to significant work related factors resulting in the development of carpal tunnel syndrome."

On July 28, 2004, the worker appealed the adjudicator's decision of July 13, 2004. In part, the worker stated, "…The constant repetitive movements of continuous typing on a keyboard, inputting dollar amounts into an interact (sic) machine, and tearing off of receipts of both an interact (sic) machine and an SII machine for every account I deal with for 7 hours a day have definitely been the culprit of my syndrome. These work related factors are definitely forceful repetitive activities which do involve motions of the wrist, such as twisting, pulling, pinch pressure, as well as repetitive wrist flexion/extension. There has been a significant change in my job duties along with an increased workload since last year…"

In a submission to Review Office dated November 15, 2004, the employer's representative indicated that the only significant difference between the duties of a cashier and counter clerk was that there was wanding and the handling of cash. These two factors were not part of the counter clerk position that the claimant held prior to the cashier's position. The representative outlined his position that "…a work relationship is questionable given the fact that the claimant has been performing essentially the same duties for 6 ½ years and yet does not experience any symptoms until the latter part of that period." The representative further stated, "In closing, we believe the totality of evidence does not, on balance of probabilities, support a work relationship. On the contrary, we believe the weight of evidence leads one away from a conclusion of work relatedness given the timing of the onset in relation to the commencement of duties to which it is being related and the absence of the forearm activities that are believed to lead to the development of this condition. Add in the applicable non-compensable factors and the non work relatedness of this workers (sic) CTS condition becomes, in our opinion, even more apparent. On this basis, we would respectfully request that this appeal be denied."

Prior to considering the worker's appeal, Review Office asked the employer to clarify whether or not there was a workload increase when the worker changed jobs to a cashier in February 2003 or at any time after she changed jobs. In response to this query, the employer stated on November 17, 2004, "…I don't feel that the change in duties or workload for the counter clerk position in February 2003 should be regarded as significant. The new position is in a similar setting, has similar hours and has similar duties. The only real change was that the clerks began accepting cash and cheque payments."

On November 19, 2004, Review Office concluded that the job duties described by the worker did not involve the degree of force, awkward positioning and repetition that would be required to cause CTS. Therefore, on a balance of probabilities, Review Office determined that the development of the worker's CTS condition was unrelated to her employment activities and that the claim was not acceptable. In May 2005, the worker's union representative appealed this decision and an oral hearing was arranged.

Reasons

As noted in the background, the worker submitted a claim for bilateral CTS. The Panel was asked to determine whether the worker's claim is acceptable. For the worker's appeal to succeed, the Panel must find there is a relationship between the worker's condition and her work duties. The Panel was not able to make this finding. The Panel finds, on a balance of probabilities, that the worker's work duties did not cause or contribute to the development of her CTS.

Evidence and Argument at Hearing

The worker attended the hearing with her union representative who made a presentation on her behalf. The worker answered questions posed by the Panel.

The employer was represented by a staff person.

The worker described the onset of her symptoms. She was unsure if both wrists became symptomatic at the same time. She advised that she had surgery on her right wrist. She was absent from work for approximately two months while recovering from the surgery. She does not intend to have surgery on her left hand.

The worker described her job duties. She noted that her duties changed in February 2003. While she continued to be a counter clerk, her duties expanded to include payment for more services which resulted in more cashier-type duties. In her previous position she only handled cheques but in the new position all types of payment are included. The new position also involves using additional machines, including an interac machine and SII machine, and more keyboarding. The worker described the operation of the machines. She provided a record of the number of clients she dealt with each day from May 2, 2005 to August 23, 2005.

The worker provided photos of her work area and workstation which she advised was not ergonomically correct. The photos showed the location of the keyboard and various machines.

In answer to questions posed by the Panel, the worker advised that she is not diabetic and does not have thyroid problems. She also advised that she does not engage in any hobbies involving significant use of her hands and wrists. She answered other questions related to risk factors for CTS.

The worker acknowledged that her duties do not involve use of high force. She described the elements of her duties which in her opinion involve pinching, pulling, gripping and wrist flexion and extension. She advised the Panel that "…my main contention in this is the change in machines that we have to work on now, where I never had a problem before. While the keyboarding, it never -- but as soon as we moved into those new machines, we got all that extra keyboarding we have to do now, punching in, and the ripping and tearing of all the receipts."

The worker's representative disagreed with the Review Office decision. He submitted that "The fact that [the worker] is not involved in a position that requires her to exert high force, repetitive activity involving twisting, gripping, pulling, pinch pressure and wrist flexion/extension should not be the sole factor that is used to deny her claim for compensation." The representative noted that everything about the worker's job is repetitious, that she deals with a high volume of customers and everything she does is with her hands, and all the work is done in a non-ergonomic environment. He referred to studies regarding the cause of CTS.

The employer representative submitted that the worker's duties do not involve the forearm activities which are recognized as contributing to the development of CTS. He referred to studies regarding the cause of CTS. He submitted that the evidence does not establish the nexus between the worker's bilateral wrist problems and her employment.

Analysis

For the claim to be acceptable there must be an accident as defined in subsection 1(1) of The Workers Compensation Act (the Act). The Panel finds, on a balance of probabilities, that the evidence does not establish that an accident occurred.

The Panel has carefully considered the evidence regarding the worker's employment duties. The Panel notes that the worker's duties changed in February 2003, approximately one year before the onset of her symptoms. However, the Panel finds that the change in duties did not cause or contribute to the development of the worker's bilateral CTS.

The Panel finds that the worker's duties do not involve the activities generally accepted as contributing to the development of CTS. In examining the worker's duties the Panel finds that the duties do not involve the use of high force, or significant gripping, pinching, or awkward flexion or extension. While the duties involve keyboarding, this is not continuous and is interrupted by writing with a pen, speaking to clients, receiving payments and use of other machines. Concern was expressed that the tearing off of receipts from the machines which were introduced into the worker's duties in February 2003 contributed to the worker's condition. The Panel is unable to conclude that this activity contributed to the worker's condition. The Panel agrees that the worker's job is very busy, but finds that it does not involve the repetitive activities associated with the development of CTS.

The Panel notes that the worker performs most duties with her right hand. She advised the Panel that the only job duty requiring use of her left hand is keyboarding, which as noted earlier, is done on an intermittent basis. The Panel also notes that the worker's condition is bilateral, involving both wrists. The Panel considers that the bilateral nature of the worker's condition supports its decision that employment duties did not cause or contribute to her condition.

The Panel finds that the worker's claim is not acceptable. The appeal is 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 5th day of October, 2005