The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 15, 2005, at the request of a worker advisor, 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 November 5, 2003, the worker filed a claim with the Workers Compensation Board (WCB) for right hand/wrist difficulties that she attributed to the repetitive nature of her work duties, which included the following: grinding paint off cement walls for three weeks solid, day in and day out; shoveling and sweeping sand for the past 10 years; cleaning toilets using a twisting motion of her wrists; basic labour duties in general. The worker stated that she first noticed symptoms in the summer of 2003 when she had been sweeping and dropped the broom. She indicated that her fingers went numb and her wrists were sore and that her symptoms progressively worsened especially while doing grinding activities for 3 weeks straight. The worker said that she was having problems with both wrists but was having surgery on the right wrist only. The worker reported her difficulties to her employer on October 23, 2003.

Medical information revealed that the worker underwent nerve conduction studies on July 24, 2003, which revealed mild to moderate right median mononeuropathy at or distal to the wrist (i.e. carpal tunnel syndrome (CTS)). There was also a small difference between the left ulnar and median sensory responses which was possibly due to an early mild CTS.

On November 12, 2003, the worker underwent surgical release of the right carpal tunnel.

During a telephone conversation on November 25, 2003 with her WCB adjudicator, the worker claimed problems with both wrists. The worker indicated that she had been employed as a seasonal labourer for the past 10 years. The season ran from May until the end of September. She indicated that she had no prior wrist difficulties. Her activities as a labourer would include anything from janitorial, to garbage collection, to grinding, etc. The worker indicated that she had started to notice tingling in her hands in the spring of 2003 and that by the summer she was dropping things. This was when she sought medical treatment for the first time. The worker indicated that she had not been experiencing any symptoms in the fall of 2002.

The worker advised the adjudicator that she did not mention anything to her employer until she needed surgery. The worker stated that she did not have any problems with thyroid, diabetes or high blood pressure. She smoked a half a package of cigarettes per day and had smoked for eight years.

On December 9, 2003, the worker told her adjudicator that she cut and split wood throughout the year as time permits for home use. She denied any symptoms during her lay off period between the fall of 2002 and the spring of 2003, or while cutting or splitting wood. The worker noted that she was symptom free until a week or two after she returned to work on May 12, 2003.

On December 11, 2003, the adjudicator telephoned the worker to advise that the WCB was denying her claim and the reasons why. The worker advised that she misunderstood the question when she previously told the adjudicator that her symptoms started in May 2003. She stated that she has had symptoms on and off for years and that she first mentioned her problem to her employer on October 23, 2003 because she was not sure what condition she had prior to that date.

In a decision dated December 11, 2003, the adjudicator confirmed that the claim for compensation was not acceptable. It was noted that the worker's job duties were varied in nature and because her symptoms began within a couple of weeks of being called back to work on May 23, 2003, it was the adjudicator's opinion that the worker was not exposed to significant work related factors which would result in the development of CTS.

Medical information on file together with statements from two co-workers confirm that the worker was having numbness and tingling in her hands for at least the last three seasons. On December 18, 2003, the adjudicator informed the worker that after his review of the new information, he found no basis on which to rescind his previous decision.

On January 20, 2004, a worker advisor provided the WCB with additional information received from an orthopaedic specialist. Following his review of the medical information, the adjudicator stated on January 27, 2004 that no change would be made to his previous decision. The adjudicator confirmed that in his opinion, the worker's CTS condition was not related to the performance of her job duties.

Following review of an appeal submission by the worker advisor dated March 11, 2004, Review Office confirmed that the claim for compensation was not acceptable. Review Office was of the view that the type of work performed by the worker would not require prolonged forceful extension or flexion of the wrists and that her cutting wood would be more likely to cause her CTS condition. On April 20, 2005, the worker advisor appealed Review Office's decision and a hearing was then arranged.

Reasons

Subsection 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 subsection, the Panel must, initially, be satisfied that there has been an accident within the meaning of subsection 1(1) of the Act. An accident is defined as, "a chance event occasioned by a physical or natural cause; and includes

1. A wilful and intentional act that is not the act of the worker,
2. any
   1. event arising out of, and in the course of, employment, or
   2. thing that is done and the doing of which arises out of, and in the course of, employment, and
3. an occupational disease

and as a result of which a worker is injured."

The worker underwent nerve conduction studies on July 24, 2003. The treating neurologist recorded the following test results:

"This study suggests mild-moderate right median mononeuropathy at or distal to the wrist (i.e. CTS). There was also a small difference between the left ulnar and median sensory responses (0.3 ms), which can (sic) due to an early or very mild carpal tunnel syndrome, but because the difference is fairly small I cannot make that diagnosis electrographically."

Based on the foregoing results the treating orthopaedic surgeon then arranged for decompression surgery.

According to the medical literature written on carpal tunnel syndrome, it can develop from work related as well as non-work related risk factors. Work related factors can include jobs requiring high force repetitive activity involving movements of the wrist such as twisting, gripping, pulling, pinch pressure and wrist flexion/extension. Conversely, non-work related risk factors can include pregnancy, diabetes, menopause, hypothyroidism, arthritis, skeletal injury to the wrist, age, gender, smoking, obesity and idiopathic etiology.

It is important to note that the worker's onset of bilateral carpal tunnel syndrome came about very shortly after her recall from an extended seasonal layoff. In addition, although the worker's job duties were repetitive they nevertheless were also varied in nature and were performed only for a very short period of time prior to the development of symptoms. In our view, the worker's duties were not consistent with the occupational risk factors normally associated with the development of carpal tunnel syndrome.

After having considered all of the evidence, we find that the worker's duties were not, on a balance of probabilities, causative of her carpal tunnel syndrome. There being no accident as defined by the Act the worker's claim is not acceptable. Accordingly, the worker's is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 19th day of October, 2005